Faculty Scholarship Digest

L. Camille Hébert



L. Camille Hébert, Disparate Impact and Pregnancy: Title VII’s Other Accommodation Requirement, 24 AM. U. J. GENDER & SOC. POL'Y & L. 107 (2015).

Do employers have a legal duty to accommodate women affected by pregnancy or childbirth? As Camille explains in this wide-ranging article, two recent developments have strengthened the claims of women seeking that accommodation. Two years ago, the Equal Employment Opportunity Commission (EEOC) revised its Enforcement Guidance to expand the circumstances under which accommodation is required. Then in Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 1354 (2015), the Supreme Court clarified the prima facie standard for a woman challenging a refusal-to-accommodate as intentional discrimination under Title VII. A woman may meet that burden by showing “that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’” Id. at 1354.

These developments are welcome changes for women seeking workplace accommodations for pregnancy, childbirth, and related conditions. As Camille demonstrates, however, the advances may promise more than they deliver. The EEOC’s revised guidance and the Supreme Court’s recent decision both rely upon a disparate treatment theory of discrimination, which will fail some employees seeking accommodation. Camille recommends turning to a disparate impact theory of discrimination to establish a surer ground for pregnancy-related accommodations. To overcome some limits in that theory, Camille then calls for the EEOC to “play a greater role” in developing and enforcing rules based on a disparate impact theory of pregnancy-related accommodation. That approach, she concludes, is the key to empowering “women who want nothing more than what men already have, to be able ‘to have families without losing their jobs.’” (Quoting California Federal Savings & Loan Ass’n v. Guerra, 479 U.S. 272, 289 (1987).

L. Camille Hébert, The Causal Relationship of Sex, Pregnancy, Lactation, and Breastfeeding and the Meaning of “Because of . . . Sex” Under Title VII, 12 G’town J. of Gender & the L. 119 (2011).

This article addresses the legal treatment of claims by women against employers who discriminate against them because of their breastfeeding or lactation—for example, an employer who terminated a woman for breastfeeding her one month old in her car during her lunch break. Title VII prohibits discrimination “because of . . . sex,” and, when the United States Supreme Court held in 1976 that discrimination based on pregnancy was not discrimination based on sex (because, while all pregnant people are women, non-pregnant people are both men and women), Congress passed the Pregnancy Discrimination Act (“PDA”) which states that “because of . . . sex” includes “on the basis of pregnancy, childbirth or related medical conditions” and contained legislative history stating that the Gilbert decision had misunderstood the meaning of “because of sex.”

In canvassing the treatment of lactation related discrimination under these statutes and their state analogs, the article discovers a majority approach of concluding that such discrimination is not prohibited by these statutes and sets about systematically demonstrating that this is the wrong result. Camille meticulously reviews the language and history of these statutes and develops careful arguments that such discrimination is both because of sex under Title VII (since they are “intrinsic” to sex) and because of a “related [to pregnancy/childbirth] medical condition” under the PDA. The article then describes the scope of disparate treatment and disparate impact claims that would follow. A final section canvasses legislative actions that have provided protection against this kind of discrimination, legislation that the article considers laudable but, if the preexisting statutes were properly understood, superfluous.

L. Camille Hébert, Transforming Transsexual and Transgender Rights, 15 WILLIAM & MARY J. WOMEN AND THE LAW 535 (2009).

In this article, Hébert contends that discrimination against transsexual and transgendered individuals constitutes sex discrimination within the meaning of Title VII. (Transgendered individuals, the broader category, refers to those “who fail to conform to the traditional stereotypes and characteristics associated with the gender that they are assigned at birth”). The article begins with a brief examination of the possibility of protecting these individuals under disability statutes, but concludes that such laws would only potentially cover a small subset of such individuals, while providing inadequate protection even to that subgroup while simultaneously stigmatizing them.

The article next covers the possibility of expressly including transgendered and transsexual individuals in anti-discrimination statutes. Legislative efforts in this regard have succeeded in about ten states, but failed elsewhere. The article then turns to consideration of existing sex discrimination prohibitions, Title VII in particular, and provides a detailed critical analysis of the decided cases. Claims of these individuals have met with some success when they rely on traditional sex discrimination claims, i.e., claims that would have the same content apart from the plaintiff’s transgendered status, though the article shows mixed outcomes.

Ultimately, however, Hébert offers a broader theory. The article develops the argument that the reasons employers and others “react negatively to transsexual and transgendered individuals may be precisely related to sex or gender.” Therefore, discrimination against these groups “should appropriately be considered discrimination on the basis of sex, as sex would have been a ‘motivating factor’ for the challenged employment practice.” After developing this argument, Hébert critically canvasses the almost uniform resistance from courts of such direct inclusion of transgendered individuals within Title VII’s protection.

L. Camille Hébert, The Supreme Court’s 2011-2012 Labor and Employment Law Decisions: From the Controversial to the Peripheral, 16 Em. Rts. & Emp. Pol'y J. 287 (2012).

In this article, Camille Hébert brings us up to speed on the Supreme Court’s decisions during the 2011-12 term that impact labor and employment law. As the title makes clear, the Court dealt with some major controversies, but most of the docket likely flew under the radar of most generalists. Hébert summaries the two major controversies: the constitutionality of health care reform and the validity of an Arizona statute imposing criminal penalties on aliens for seeking work in that state. These landmarks were the exception, not the rule. After taking the reader through the multiple opinions in National Federation of Independent Business v. Sebelius and Arizona v. United States, Hébert turns to the other cases heard that term on: sovereign immunity under the FMLA, the ministerial exception to the Fair Labor Standards Act, and the First Amendment limitations on the ability of public sector unions to collect dues from non-members to be used for political purposes. Also included are summaries of what she labels “more mundane issues,” such as the definition of “outside salesmen” in the exemption to the Fair Labor Standards Act, the meaning to be given to certain terms in the Longshore and Harbor Worker's Compensation Act, the role of the Merit Systems Protection Board when constitutional challenges to employment decisions are made by federal employees, and whether private attorneys retained by public bodies to conduct investigations are entitled to qualified immunity against violations of employees' constitutional rights. Hébert does justice to even these less-than-landmark decisions.

L. Camille Hébert (w/ Loïc Lerouge), The Law of Workplace Harassment of the United States, France, and the European Union: Comparative Analysis After the Adoption of France’s New Sexual Harassment Law, 35 Comp. Lab. L. & Pol’y J. 93 (2013).

Professor Camille Hébert and her coauthor Löic Lerouge compare the laws on workplace harassment in the U.S., the E.U., and France. In the U.S., harassment law developed from anti-discrimination laws and conceptually is a form of discrimination. Thus, harassment is illegal only if it is related to a protected characteristic, such as race or sex. European Union law on harassment also considers it to be a form of discrimination. French law, however, developed a different approach distinguishing between sexual and moral harassment. Sexual harassment involves conduct of a sexual nature; moral harassment is broader and applies to inappropriate behaviors affecting healthy psychological relationships at work. Some commentators equate moral harassment with bullying or mobbing. Besides the difference in origins, U.S. and French law also differ in enforcement. Workplace harassment in the U.S. involves a civil suit against the employer, not the harasser. In contrast, in France harassment is part of the Criminal Code and enforced against the harasser as well as part of the Labor Code enforced against the employer. In 2012, France adopted a new sexual harassment law in an attempt to harmonize sexual and moral harassment. The authors, however, still see the underlying conceptual difference on harassment in France as problematic. It remains to be seen if the new French law will be interpreted in a way to harmonize it with E.U. law.

Book Supplements

L. Camille Hébert, 2011-12 SUPPLEMENT TO EMPLOYEE PRIVACY LAW (Thomson-West). Camille is the author of this leading treatise on the subject which, in this electronic era, she updates annually rather than putting out a new edition. This allows her each year not only to update every chapter, but regularly to put out new versions of individual chapters, on a rolling basis, keeping the supplement from becoming hopelessly thick. In this year, there were two revised chapters: “Electronic Monitoring and Surveillance,” which now runs 282 pages, and Discrimination Based on Sexual Orientation and Gender Identity,” which now runs over 400 pages. Of course, both of these important areas remain subjects of continuing doctrinal development; indeed, the section on gender identity discrimination is entirely new.