A "narrow Exception" Run Amok: How Courts Have Misconstrued Employee-rights Laws' Exclusion of "policymaking" Appointees, and a Proposed Framework for Getting Back on Track

• Publication year: 2021

A "NARROW EXCEPTION" RUN AMOK: HOW COURTS HAVE MISCONSTRUED EMPLOYEE-RIGHTS LAWS' EXCLUSION OF "POLICYMAKING" APPOINTEES, AND A PROPOSED FRAMEWORK FOR GETTING BACK ON TRACK

Angela Galloway

Abstract: The civil rights and workplace protections afforded some government workers vary vastly nationwide because federal circuit courts disagree over how to interpret an exemption common to five landmark employment statutes. Each statute defines "employee" for its purposes to exclude politicians and certain categories of politicians' appointees- including government employees appointed by elected officials to serve at "the policymaking level." Neither Congress nor the United States Supreme Court has defined who belongs to the "policymaking-level" class. Consequently, lower federal courts across the country have adopted their own standards to fill the gap, creating a wide circuit split. At stake in this employment law vagary are basic worker rights guaranteed by major federal statutes. The U.S. Supreme Court or Congress should articulate a lucid definition for the exception for appointees on the "policymaking level" that honors Congress's intent for a narrow exception: the exemption should apply only to positions characterized by both a direct working relationship with the appointer and an explicit duty to make substantive policy.

INTRODUCTION

Consider the professionals that elected officials appoint to serve them at the "policymaking level" of American government. Agency directors likely spring to mind. Perhaps also executive cabinet members. But do probation officers(fn1) or health inspectors?(fn2) Would you include part-time assessors(fn3) or sheriffs' deputies?(fn4) Some federal judges do deem such employees as serving at the "policymaking level"-a status that can cost workers some of their basic civil rights protections.

Meanwhile, other federal courts take a contrary approach-declining to label as policymakers,(fn5) for instance, the director of a senior services agency,(fn6) a police commander,(fn7) the head of a juvenile detention training center,(fn8) and-again-sheriffs' deputies. (fn9)

The difference: geography. Whether courts deem politicians' appointees(fn10) as "policymaking-level" workers-and thus beyond the reach of workers' rights statutes-depends on where the workers live.

The civil rights and workplace protections afforded some government workers vary vastly nationwide because federal circuit courts disagree over how to interpret an exemption shared by five landmark employment statutes. Congress excluded elected officials and their top advisers from the laws protecting employees against discrimination(fn11) and substandard employment conditions.(fn12) Each statute defines "employee" for its purposes(fn13) to exclude politicians and certain categories of politicians' appointees who are not protected by civil service laws.(fn14) The exempted categories-virtually identical among the statutes-include government employees who are appointed by elected officials to serve at "the policymaking level. "(fn15) Neither Congress nor the United States Supreme Court has defined who belongs to that "policymaking" class.(fn16) The result is a statutory definition of "employee" so convoluted one federal judge described it as "an outstanding example of bad draftsmanship."(fn17) Consequently, lower federal courts across the country have adopted their own standards to fill the gap, creating a wide circuit split.(fn18) In 2010, the Seventh Circuit expressly declined to bridge the gap, deciding instead that the exception denied discrimination protections to all nine hundred(fn19) of Illinois's assistant state's attorneys.(fn20)

Dozens of cases illustrate the inconsistent application of the "policymaking" exception. For example, one federal judge in New Mexico dismissed a former town administrator's age discrimination claim after deeming the position as on "policymaking level," in part because the administrator could recommend policies to superiors.(fn21) But an Iowa judge came to the opposite conclusion on similar facts, finding that a county agency director did not qualify for the exception because he could only recommend policies, while his superiors retained the final say.(fn22) Another judge barred a discrimination claim by a deputy elections supervisor because he held authority to "arrest, subpoena and investigate possible violations of elections laws," which the judge interpreted as policymaking-level duties.(fn23) But another judge allowed a former sheriff deputy's suit, explaining that the policymaking exemption was "aimed at persons such as members of a governor's cabinet."(fn24) And a judge in Indiana said a probation officer qualified as a policymaker because her decisions "may promote or undermine the policies" of others.(fn25) But a federal judge in Texas allowed a suit by a former city manager, finding she was not exempted because she did not actually make policy-she merely implemented it.(fn26)

At stake in this employment law vagary are basic worker rights guaranteed by federal statutes. Title VII of the Civil Rights Act of 1964 bars discrimination based on race, color, religion, sex, or national origin.(fn27) The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against workers who are at least forty years old.(fn28) The Fair Labor Standards Act (FLSA) provides minimum wage and overtime pay protections.(fn29) The Equal Pay Act (EPA) mandates equal pay between the sexes for comparable work.(fn30) And the Family and Medical Leave Act (FMLA) requires larger employers to provide unpaid leave to employees with serious health conditions or family caretaking obligations.(fn31) According to the shared definition of "employee," each of these statutes denies protection to workers appointed at the "policymaking level"-making interpretation of that term critical to determining public employees' rights.

The unresolved scope of the "policymaking-level" exemption results in judicial discord over who is protected by the laws against discrimination and shoddy work conditions. (fn32) At one end of the spectrum, the Seventh Circuit reads the phrase broadly: the exception denies protection to employees who so much as implement policies, or offer suggestions about them.(fn33) Several other circuits embrace a much narrower approach, holding that the exception applies only to top appointees "closely associated" with the elected officials who appointed them.(fn34)

This Comment asserts the need for a single, lucid definition of the "policymaking-level" exception, and endorses an approach based on statutory language, legislative history and policy objectives. Part I introduces the laws at issue and the development of the exception for appointees at the "policymaking level." Part II examines the split between: (1) the Seventh Circuit's long-standing but unique approach; and (2) the narrower standard most thoroughly developed by the Second Circuit and generally accepted by several other circuits. Part III argues that both approaches miss the mark, and advocates instead for a more precise three-part analysis that better reflects congressional intent: the "policymaking-level" exception should apply only to professionals who work directly with their appointers and who establish official policy of a substantive nature.

I. CONGRESS INTENDED TO CATALYZE SWEEPING SOCIAL CHANGE THROUGH THE FEDERAL EMPLOYEE-RIGHTS STATUTES

The statutes(fn35) subject to this interpretive inconsistency share two major policy goals: to shield workers from discrimination based on their membership in a protected class, and to protect employees from legally unacceptable pay and workplace conditions. (fn36) They stem from Congress's aspiration to catalyze fundamental social change.(fn37)

A. The Statutes at Stake Protect Employees from Poor Work Conditions and Discrimination Based on Race, Religion, Age, and Caregiver Status

The oldest of the statutes at issue is the FLSA, which established a national minimum wage, overtime pay protections, and child labor standards, with some significant categorical exceptions. (fn38) The goal was to protect workers from "oppressive" work conditions and "substandard" wages.(fn39) In 1963, Congress broadened the FLSA through the EPA, which bars sex-based wage disparities.(fn40)

The most comprehensive of the anti-discrimination statutes at issue is the Civil Rights Act of 1964,(fn41) which bars certain forms of discrimination(fn42) and aims to foster racial integration. (fn43) The Act is best known for its provisions mandating school desegregation and prohibiting racial discrimination in places of public accommodation.(fn44) Additionally, Title VII of the Act bars most employers(fn45) from employment discrimination against protected classes.(fn46) The U.S. Supreme Court has described the Act's broad remedial purpose as: "to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees."(fn47) At the time of the Act's passage, Congress considered fairness in employment an integral element to the success of its overall civil rights goals.(fn48) Over the decades, Congress has broadened the law's scope(fn49) and courts have liberally construed the Act.(fn50) For example, the U.S. Supreme Court has read it to include a...