Gender Discrimination Test Case Dismissed

On February 15, 2012, the U.S. Court of International Trade (“CIT”) dismissed the consolidated test case that had been created to litigate the gender and age discrimination issue in Slip Opinion 12-18

The Complaints in the case alleged that the application of different duty rates on the same products for different genders and ages was unconstitutional. For example, the duty rate on women’s leather upper shoes is 10% whereas the duty rate on men’s leather upper footwear is 8.5%. Plaintiffs alleged that this type of gender specific tariff was discriminatory. There are a number of instances in the tariff where these type of gender preferential duty differences occur.

The CIT held that based on the Federal Circuit’s previous decision in Totes v. United States that these types of duty differences were not facially discriminatory. Accordingly, the CIT explained that the Plaintiffs had to plead that the legislature created these duty differences to discriminate against the unfavored class. The mere fact that the duty differences exist did not create a presumption that the legislature intended to discriminate. The court said that the pleadings did not include sufficient allegations about the government’s intention to discriminate. The CIT suggested that the government may have been protecting certain industries when it created the duty differences and this would have been acceptable under the law.

The parties have sixty (60) days to appeal this decision to the U.S. Court of Appeals for the Federal Circuit. Alternatively, the Plaintiffs or other parties may file new actions where they can make the allegations that the court said were missing. The opinion is available at http://www.cit.uscourts.gov/slip_op/Slip_op12/12-18.pdf

We will provide additional information as it develops.

If you have any questions, please feel free to contact Robert B. Silverman of this office.