CIT Dismisses HTSUS Gender, Age Discrimination Case

February 16, 2012

The long running effort by some importers to show that differing rates of duty for men's, women's, and children's gloves, footwear, and apparel are unconstitutionally discriminatory has been dismissed by the Court of International Trade.

By way of example, men's leather gloves of HTSUS item 4203.29.30 are subject to a duty rate of 14%. Other gloves, meaning gloves for women and children, are classified in 4202.29.40 and are subject to a duty of 12.6%. According to the plaintiff’s in Rack Room Shoes v. United States, that is unconstitutional discrimination based on gender and age.

In previous related litigation, the Court of Appeals for the Federal Circuit held that these tariff rate differences are not "facially discriminatory." That is because the distinction is based on the product, not the gender of the purchaser. Once the Court reached the conclusion that the tariff is not facially discriminatory, the plaintiff needs to assert facts showing a governmental intent to discriminate. In this case, the plaintiffs amended the complaint in an effort to meet that burden.

The first fact alleged to show discriminatory intent is that the United States government could have selected any other criteria on which to impose this duty difference. Since it chose gender and age, it must have intended to discriminate. The second argument was based on a governmental report from 1960 indicating that gender based tariff rates were of questionable economic justification. The Court of International Trade rejected both of these facts as, if proven, not providing evidence of the intent to discriminate.

Based on this analysis, the Court found that the plaintiffs had failed to assert facts that, if true, would plausibly give rise to an entitlement to relief. That is the standard the Supreme Court has said must be met for a case to move on in federal court. Consequently, the court dismissed the case. In all likelihood, this will be appealed to the Federal Circuit, which previously decided that there was no facial discrimination. If the case reaches the Supreme Court, that will be the primary question for review.