INTRODUCTION 413 I. UNDERSTANDING THE TITLE VII-GERA RELATIONSHIP 417 II. POLICY JUSTIFICATIONS FOR NARROWING THE TRAPDOOR 420 A. Better Forum and Remedies 420 B. Commissioner Charges 425 C. The Desire for legislative Consistency 427 III. THE "PERSONAL STAFF" SPLIT 429 A. The Fourth Circuit's Guided Approach 429 B. The Fifth Circuit's Multifactor Balancing Test 432 IV. SETTLING THE SPLIT: WHY COURTS SHOULD USE CURL-CROMKR, 434 AND HOW CURL-CROMER WILL BETTER NARROW THE TRAPDOOR A. Understanding How the Curl-Cromer Test Narrows the 434 Trapdoor B. Basis for Selecting the Curl-Cromer Test 438 1. Congressional Intent 438 2. Legislative Purpose 440 3. Agency Interpretations 442 CONCLUSION 443 INTRODUCTION
Title VII of the Civil Rights Act of 1964 protects individuals from employment discrimination, whether it is based on sex, religion, national origin, race, or color. (1) That is the part everyone knows. What most do not know is that the route to remedy depends on where you work. Private sector employees at qualifying employers (2) have a simple route: file a charge at the Equal Employment Opportunity Commission (EEOC) or its state-level equivalent, and either seek redress in the administrative realm, or get a "right-to-sue" letter and take the case to a federal district court. (3) This gives litigants autonomy to choose which path they prefer, depending on their goals. However, for some, the path has already been decided. These employees cannot file their suits in federal district courts. (4) They cannot argue their cases to juries. (5) They cannot even argue before Article III judges. (6) Instead, they must rely on an administrative framework, in front of administrative judges, with altered rules of evidence, (7) all because they fell through the "trapdoor" of Title VII: the "employee" exemptions in 42 U.S.C. [section] 2000e(f).
Normally, "employees" are allowed to file their cases with the EEOC and choose whether to follow the administrative resolution process or take their cases to court. (8) But the Equal Employment Opportunity Act of 1972 created three exemptions to Title VTTs definition of "employee," applicable only to state government employees. (9) If individuals fit into one of these exemptions, they fall out of Title VTTs protections. (10) Instead, they must rely on section 321 of the Government Employee Rights Act of 1991 (CERA), which establishes a mandatory administrative procedure for the aggrieved employees. (11) This is what makes Title VII's "employee" exemptions act as a "trapdoor"; the exemptions drop certain state-employed persons from Title VH's coverage, only for them to be caught in the "safety net" of CERA.
This is problematic for several reasons. First, CERA is far from a perfect safety net. GERA offers lesser protections from discrimination, both legally and practically speaking, and lesser remedies. (12) This problem is compounded by the fact that courts and EEOC investigators are not sure who is subject to the trapdoor and who is not. The trapdoor's rules seem clear--for example, the trapdoor applies to persons chosen to be the personal stajj of an elected state official. (13) But what does "personal staff" mean? The circuit courts have splintered on who counts as "personal staff and they disagree on what test should be used to determine if a charging party is "personal staff." This has led the EEOC to misclassify some plaintiffs, leading to fruitless district court lawsuits that end up being sent back to the EEOC. (14)
This murkiness is especially problematic given the recent revelations of discrimination in politics. As the #MeToo movement marches on, sexual harassment claims under Title VII are increasing (15) and many state political workers are reflecting on the appropriateness of their workplace cultures. (16) For instance, survey data in the Connecticut state legislature reported that many viewed '"sexual harassment [as] a pervasive problem' within the General Assembly." (17) In Washington, a letter decrying the tolerance for groping and sexual innuendo within the state legislature gathered more than two hundred signatures, with lobbyists and lawmakers being among the signatories. (18) Even Americans outside of state politics are weighing in on the issue; a jury in Iowa awarded a former Iowa Senate staffer over two million dollars for the sexual harassment she suffered in the state capitol. (19) This is not solely a state politics problem either: the #MeToo movement has also revealed accusations within the U.S. Congress. (20) For instance, allegations against some U.S. representatives received considerable press after it was reported that the congressmen used taxpayer funds to setde complaints against them. (21) While additional protections have been enacted for congressional employees, (22) protections for state government employees have not received similar attention. (23) This Note focuses on the federal remedies available to one class of these employees: the "personal staff of state-level elected officials. They must be given a fair opportunity to say "me too."
Given this context, we should revisit what protections are available to these state workers and push for reforms that further sexual equality. One way to do so is to decrease the size of Tide VII's trapdoor. This Note aims to fight sexual harassment in politics by advocating for a narrower understanding of the trapdoor, such that more plaintiffs are eligible to bring Tide VII actions rather than GERA actions. Specifically, this Note explains why the "personal staff' trapdoor should be narrowed and then provides a method for how to do so--by settling a circuit split on the interpretation of "personal staff."
Part I explains the relationship between Title VII and GERA. It illustrates the machinery behind the trapdoor and details how the "personal staff' exemption can lake a charging party out of Title VII and plug them into GERA. Part II then presents policy reasons for narrowing the "personal staff' exemption. While GERA does offer some protection, the protections of Title VII are more desirable. Given the context of state politics, Title VII offers a better forum (federal court and juries), belter remedies (punitive damages), and better oversight by the EEOC (through Commissioner charges). (24) Furthermore, extending Tide VII protection to state government workers will give them equivalent protection to congressional workers. (25) Whereas Part II explains "why," Parts III and IV describe "how." Part III details the circuit split over the "personal staff exemption. In deciding between two multifactor balancing tests, one by the Fourth Circuit and one by the Fifth Circuit, Section IV.A argues that the Fourth Circuit's test will better narrow the trapdoor and offer more litigants Title VII protection. Section IV.B then provides a legal basis for choosing the Fourth Circuit's test. Because the Fourth Circuit test better aligns with congressional intent. Title Mi's legislative purpose, and agency interpretations of the statue, it represents the proper interpretation of the "personal staff exemption and should be favored.
UNDERSTANDING THE TITLE VII--GERA RELATIONSHIP
First, we must examine why Title VII's definition of "employee" is a trapdoor hidden in plain sight. Title VII protects "employees" from disparate treatment and harassment, (26) and the word "employee" is a defined term in the statute. (27) While the statutory definition of "employee" under 42 U.S.C. [section] 2000e(f) (28) is broad, encompassing a large percentage of America's workforce, the definition specifically exempts three types of workers from Tide VII's protections. Under these exemptions,
the term 'employee' shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. (29) These provisions act as an off-ramp, allowing courts to grant Rule 12(b) motions and summary judgment motions against plaintiffs who seek the protection of Tide VII. (30) Similar exemptions can also be found in the Age Discrimination in Employment Act (ADEA) (31) and the Fair Labor Standards Act (FLSA), (32) whose definitions are also exported to the Family and Medical Leave Act (FMLA) (33) and the Equal Pay Act. (34)
These exemptions were added to Title VII as part of the Equal Employment Opportunity Act of 1972. (35) But until 1991, there was no backstop for those who were exempted. (36) Instead, they had to rely upon other causes of action not based in the Civil Rights Act of 1964, such as [section] 1983, [section] 1981, state discrimination laws, and state tort law claims. (37) However, in the Civil Rights Act of 1991, Congress created a catchall civil rights statute to cover any plaintiffs who fell through the trapdoor. This was embodied in CERA, which created an administrative remedy for
any individual chosen or appointed, by a person elected to public office in any State or political subdivision of any State by the qualified voters thereof-- (1) to be a member of the elected official's personal staff;
(2) to serve the elected official on the policymaking level; or
(3) to serve the elected official as an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. (38)
Note how this provision mirrors the exemptions in Title VII. (39) Because of the identical provisions, circuit courts have concluded that the analysis under Title VII--regarding whether a worker is a protected "employee"--is the same analysis for deciding whether a worker qualifies for the catchall provision of GERA. (40) In other words, if a court held that a worker was "personal staff of a state elected official, and not covered by Title VII, the court...