Author Archive for Lesley Chan

Not a Hate Crime, WV Supreme Court Determines about Attack on Gay Men

In April 2015, Steward Butler was in his car at a stoplight when he saw two men kissing on the sidewalk. He directed homophobic comments toward them, then exited his car and punched both men in the face. He was charged with battery, as well as violations of an individual’s civil rights under West Virginia Code Section 61-6-21(b), which makes it unlawful to injure a person because of that person’s “sex.” Though Butler was found guilty of battery, the lower court ruled he had not committed a civil rights violation under Section 61-6-21(b) because his assault on the men was not based on their “sex,” a term the court asserted was unambiguous and could not be expanded to include “sexual orientation.” The West Virginia Supreme Court upheld the ruling.

Sex v. Sexual Orientation

In reaching its decision, the Court explained that because use of the word “sex” in the statute was unambiguous, it should not be subject to interpretation and its plain meaning should be applied. Further, a word used in a statute is not deemed ambiguous merely because the parties in the case do not agree on its meaning.

The Court asserted that because the word “sex” was not defined in the statute, it was required to apply the “common, ordinary and accepted meaning.” In this case, it argued, “sex” and “sexual orientation” have different meanings. Referencing dictionaries to explain the difference, the Court explained that “sex” involves the physical structures such as genitalia and functions that separate males and females. By contrast, “sexual orientation” is about an individual’s sexuality or predisposition when it comes to sexual behavior and activity with other males or females.

Other States Have Included “Sexual Orientation” in Their Statutes

The Court went on to say that most of the states have enacted hate crime statutes, and there is an irrefutable distinction between “sex” and “sexual orientation” among the states. Six states, including West Virginia, use the term “sex” or “gender.” With respect to 20 of the states, the legislature used the term “sex” or “gender” in addition to the term “sexual orientation.” Six other states mention only “sexual orientation.” Some states use the terms “sexual orientation” in addition to “gender expression” or “gender identity.” Finally, certain states do not use any of these terms. Moreover, the Court pointed out that there have been prior court decisions on the matter involving states that use only the word “sex” in their hate crime statutes, and in these cases the courts did not define it to include or exclude “sexual orientation.”

Hate Crime

West Virginia’s Legislature Has Indisputably Left Out “Sexual Orientation”

According to the Court’s analysis of the legislature’s intent, it is undeniable that the term “sexual orientation” has been purposefully left out of the state’s hate crime statute. Since the statute’s enactment in 1987, the legislature has failed to add the term “sexual orientation.” Thus, the Court asserted, it must recognize the legislature’s intent to not include “sexual orientation” in the statute.

Dissenting Justices: Majority’s Take on the Law is Wrong

Justice Workman and Justice Davis wrote a dissenting opinion, arguing the majority opinion showed a detrimental misunderstanding of the phrase “because of . . . sex” in the statute. The Court is required to look at the entire language of a statute, and in this case, the dissenting Justices assert, the victims were assaulted because of their sex. In a hate crime situation, it is the bias and motivation for the crime that are ultimately punished, and the victims were clearly attacked because they were not behaving in a manner their assailant perceived men should behave with other men.

Justices Workman and Davis supported their argument with a case that came under Title VII of the Civil Rights Act of 1964. There, a female manager was denied partnership at her accounting firm and told she should act and appear more feminine. The case came before the U.S. Supreme Court, which concluded the phrase “because of . . . sex” in the federal statute included mistreatment due to gender stereotypes. According to Justices Workman and Davis, the woman was discriminated against not just because she had the anatomical parts of a female, but because she did not conform and act in the manner she was expected to as a woman in a corporate setting. But for her sex, Justices Workman and Davis argue, the woman in the accounting firm would not have been discriminated against. Likewise, but for their sex, the two male victims in this case would not have been attacked by the defendant.

That Victims Suffered “No Injustice” Is Highly Questionable

The Court stated in its opinion that, despite the dismissal of the hate crime charges, there was no injustice because the two counts of battery against Butler were upheld. This remark is undoubtedly an oversimplification of the meaning of hate crimes and what justice means for its victims.

Working Families Flexibility Act… Is It Actually Flexible?

The House of Representatives recently passed the Working Families Flexibility Act of 2017. Should the bill also pass in the Senate, the White House has announced that President Trump’s advisers plan to recommend he sign it into law.

What is the Working Families Flexibility Act?

If this bill becomes law, it will amend the Fair Labor Standards Act and change current rules regarding overtime pay in the private sector. In lieu of monetary overtime pay, under the bill, an employee can opt to receive compensatory time off equivalent to no less than one and one-half hours for each hour the employee works overtime. This option to receive paid time off has been available in the public sector for several years as a means of cutting costs.

The bill further provides that employees cannot accrue more than 160 hours of compensatory time. In order to opt for compensatory time, the employee must have worked at least 1,000 hours during a minimum 12-month period of continuous employment with the employer.

Working Families Flexibility ActWould Working Families Truly Have “Flexibility” Under the Act?

According to proponents of the bill, families would have more flexibility and control over their work schedules. They could use their compensatory time any way they choose, and take time off to tend to personal and family matters. Advocates of the bill could argue it empowers working families who often find it difficult balancing work and home life.

But opponents of the bill question the “flexibility” the proposed law would supposedly give working families. The primary concern is that an employee’s boss has the final say as to when the employee can take time off. An employee might waive overtime pay, expecting to take compensation time later (such as for a child’s recital or scheduled family trip), but the reality is requests for specified time off could be declined. If time off (and when it can be taken) is ultimately in the hands of the boss, how much flexibility can really be provided to working families under the Act? There are times when employers may even require an employee work overtime. If overtime pay is waived, it goes back into the pockets of businesses. Yet, use of earned compensatory time, when the employee desires to take it, is subject to the boss’ approval.

Why is a Paid Time Off Option Feasible in the Public Sector, and Why is it Dangerous in the Private Sector?

The answer to this is simple: unions. Unions create a layer of protection that is not as readily available in the private sector. Under the bill, in order for an employee to select compensatory time in lieu of overtime pay, there must be a written agreement if the employee is not represented by a union. But what if the employee is not fully aware of the consequences of surrendering earned overtime pay? The purpose of a collective bargaining agreement set forth between unions and employers is to preserve employee rights, including overtime pay, and lay out well-established procedures for grievances. It is a formal, structured agreement designed to protect, not just one person, but a group of individuals from foreseeable employer misconduct. This systematic safeguard would not be available to an unrepresented employee in the private sector who enters into an agreement waiving overtime pay. At a minimum, the thought of this is alarming, and given the questionable benefit of “flexibility” proposed by the bill, this type of an agreement seems fraudulent. If this bill becomes law, hard-working—unrepresented—families across the country, struggling to make ends meet, would be surrendering their right to overtime pay.

There is a provision in the bill which prohibits an employer from coercing an employee into taking compensatory time, and the bill’s proponents might argue that allowing agreements between employers and employees provides a protective measure against such coercion. Regardless, the for-profit nature of the private sector would undoubtedly make coercion inevitable, and employees without proper representation would become vulnerable.

So as the bill sits in the Senate, it is worth pondering whether this proposed law truly helps working families, or hurts them by providing an option that, at the outset seems fair, but actually later strips them of hard earned money. Though flexibility via compensatory time seems like a nice option for employees, perhaps maintaining legally mandated overtime pay is the best option for protecting working families and minimizing their potential loss.