Monday, July 07, 2008

Breaking: Gender Discrimination Case Dismissed

On July 3, the CIT dismissed Totes-Isotoner, but not on the grounds many people expected. It is a very interesting read (link). This is the case asserting that tariff rates that distinguish between products for men and women or between adults and children are unconstitutionally discriminatory. For example, men's gloves of HTSUS item 4203.29.30 are subject to a rate of 14% while gloves for other people (presumably women and children) of HTSUS item 4203.29.40 are dutied at 12.6% ad valorem.

I'm going to read the case more carefully and will provide a fuller analysis, but here are the highlights I have gleaned this morning:

  1. Because the tariff differential is implemented in a statute, review of its constitutionality is not precluded by the political question doctrine. In other words, this is not purely a questions of policy or negotiations, it is a tariff law that can be reviewed.
  2. Totes, as the importer, has standing to pursue the case even though it is only indirectly affected because it is being used to implement the allegedly discriminatory measure.
  3. Totes' claimed injury is a direct result of alleged express discrimination and, therefore, it falls within the zone of interest protected by the constitution.

However, Totes has a problem. In its complaint, Totes did not assert any facts showing a right to relief. Flipping this around, it seems to be a requirement for pleading real, as opposed to possible injury. What Totes apparently failed to do is assert that what appears to be express gender discrimination is not based upon some legally sufficient governmental justification. Having failed to allege a purpose or intent to disfavor one protected class (e.g., men), the Totes complaint is insufficient to state a claim on which relief can be granted. Another aspect of this is that there is no clear link between these tariff designation of products and the actual use of them. Totes has not asserted in its complaint that men buy men's gloves and women by women's gloves.

As a result, the Court of International Trade dismissed the case. Importantly, the dismissal was without prejudice meaning that Totes may be able to adjust its pleading and re-file. Of course, even if this case cannot be fixed, there are a large number of cases pending before the Court. That means, it appears this issues will get hashed out on the substance.

Here's the link again if you are interested.

1 comment:

Micawber said...

Larry: I think the crux of the case is that Equal Protection under the US Constitution protects people, not things. And, men who wear gloves don't qualify for any number of reasons as a class susceptible to unconstitutional discrimination. See my own blog post on this: http://micawberspunch.blogspot.com/2008/07/we-gloves-of-these-united-states.html