Archive for the 'Discrimination' Category

DACA On a Limited Lifespan, What Should You Expect? Part 2: Implications of Losing DACA

President Trump has declared the upcoming death knell of the Deferred Action for Children Act (DACA)-an Obama era program allowing immigrants who’ve been here most of their life to receive deferred deportation, get drivers licenses, social security numbers, and get work permits. Yesterday, we discussed whether and how you can extend the protections before the program disappears. However, that unfortunately won’t be an option for everybody.

Only those whose DACA protections expire on or before March 5, 2018 can apply for a renewal of protection and the United States Citizenship and Immigration Services office is not accepting any new applications for protection as of Trump’s announcement on September 5th of this year. While 800,000 or so people have received the protections and benefits of DACA, despite restrictive requirements limiting the program’s applicants to people who-among other things-spent nearly their entire life in the U.S., the reality is many are going to lose protections in the coming months. So what will this loss of protections mean in practical terms?

DACAWhat Does the End of DACA Mean?

First and foremost, there is a real potential of deportation. Part of applying for DACA involves giving an enormous amount of information-where you live, where you go to school, etc. This information was protected by privacy rules under the Obama administration but Trump removed those protections this January.

While the stated deportation priorities of the Trump administration are immigrants with criminal records, the U.S. Immigration and Customs Enforcement Agency (ICE) has a bit of a history in recent times of going for people they know about. This makes former DACA recipients, who have provided their address and whereabouts, potential targets. This is surely a terrifying fact for DACA recipients-many of whom have spent their whole lives in the U.S., have no ties or life outside the country, and were babies or children when their parents entered the U.S. The prospect of being forced to start over in a place where you have no roots is a scary one.

However, there’s a lot of ground to cover-in the courts and in Congress-before there is a final word on how DACA Dreamers are going to be treated. For now, we can focus on the things in your control and the more certain and immediate effects of the end of DACA.

Leaving the Country-Advanced Parole

DACA protections require recipients to continuously live in the U.S. This means no leaving the country, except with earlier permission known as advance parole. This was generally provided for emergencies and family situations. While it was initially generously granted, it’s become harder to get as the program continued. However, it’s never been harder to get than now-advance parole is no longer available whatsoever. This means that DACA dreamers will not be allowed to leave the country and keep their protections from now on. Honestly, with the situation as uncertain as it is, it may be advisable to not take an advance parole trip you have received approval for if it is coming up in the near future. If you’re already abroad on advance parole, it may be worth coming back.

Work Permits: Will You Keep Your Job?

DACA isn’t gone just yet, and won’t be until March 5, 2018. Even still, Congress and the courts may still act before that date one way or another. Either way, your work permits will be valid until DACA goes away completely. You can continue to work until then. What’s more, your employer does not have the right to ask you whether you are a DACA recipient or how you got your work permit. If you are an at-will employee (the most common type of employment) you can be fired for any legal reason. However, you cannot be fired, demoted, or put on leave simply because the expiration date on your work permit is coming up. You also are under no requirement to inform your employer that DACA has ended. As DACA ends they can ask for an updated work permit. If you don’t have a valid work permit, they will likely fire you. One potential option to help mitigate this-although it has no guarantee of success-would be to ask to placed on a leave of absence until you can figure out your work permit. Then you’d at least have a job waiting if Congress or the courts work out something with DACA.

Driver’s Licenses: Staying on the Road

One of the other great benefits of DACA was that it helped many immigrants get driver’s licenses-opening up any number of job and life opportunities. Once DACA’s gone, whether you can have a license will mostly depend on which state you live in.  Twelve states-California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Mexico, Utah, Vermont, and Washington-will give otherwise eligible residents a drivers license no matter what their immigration status is. If you live in one of these states, you’ll likely still have a valid license once DACA goes away. Otherwise you’ll need to look to the rules of your state’s Department of Motor Vehicles to determine what your options are.

How Will This Affect Your Health Insurance?

While DACA offered several advantages-access to federal healthcare plans under the Affordable Care Act was not one of them. Thus, for the most part, healthcare will be unaffected. However, if you have insurance through your work, you should anticipate losing that coverage once DACA disappears. If you have coverage through your spouse or partner, coverage will not be effected. However, you should know that your spouse or partner may offer you an additional means of becoming a legal citizen-it is likely worth consulting and attorney.

In some states and districts-California, Massachusetts, Minnesota, New York and the District of Columbia-there are state health care plans which are available to low income households-including DACA households. Washington has a similar program which may be available to DACA recipients who have disabilities.

In California, Massachusetts, Minnesota, and New York, low-income DACA recipients may be eligible for comprehensive health coverage through a state program (e.g., Medi-Cal). In Washington, DACA grantees with disabilities may be eligible for medical coverage. After your DACA expires, you may still be eligible for state health programs. Check back here for updates, or check with a trusted advocacy organization in your state. Different states will have different approaches once DACA disappears and it’s worth considering the approach of your state.

Some states offer some limited coverage based on certain diseases or populations, low-income families can often get help for pregnancy-related issues and some emergency care. A lot of these programs will be available to non-citizens even after the end of DACA.

In California, Illinois, Massachusetts, New York, Oregon, and Washington, there is also full medical coverage available to all low-income persons under the age of 19-regardless of immigration status.

Impact on Education?

Many DACA dreamers are pursuing higher education in the many colleges and universities within the U.S. Most states-with the exception of Alabama and South Carolina-allow for undocumented immigrants to attend universities. Georgia is notable for having a few colleges that specifically deny access to DACA Dreamers.

What’s more, even as it stands, DACA Dreamers can’t get federal financial aid-although some states offer aid regardless of immigration status.  For the most part, the disappearance of DACA should have a limited effect on Dreamers seeking higher

The Fate of Your Social Security Number

The Social Security Number (SSN) you received through DACA should continue to be valid even after the end of DACA and should remain valid for life. You should continue to use the SSN for tax purposes, education, banking, and any other purpose under the sun. However, it’s worth noting that it won’t be useful for employment without a work permit.

If you are a DACA recipient and haven’t yet received a SSN it is worth applying for one now while your DACA benefits are still valid.

Knowing Your Rights When Dealing With ICE

We’ve talked about deportation as a possibility, and that means dealing with ICE. There have already been reports of ICE agents targeting DACA recipients. It’s important to know your rights regarding ICE-even as an undocumented immigrant you have constitutional rights. However, if you have any real questions or legal issues it is crucial that you speak to an immigration attorney. But, there are a few things worth keeping in mind for dealing with ICE:

  • You are not required to answer any questions asked by an ICE agent. It is generally better not to answer until you consult an attorney.
  • You do not have to, and generally should not, answer the door to an ICE agent who is knocking.
  • You are not required to and should not, before consulting an attorney, sign anything given to you by an ICE agent.
  • If an ICE agent stops you outside your home, it is worth asking if you are free to leave. If the answer is yes, you can and should leave.

The Future

The rights we’ve talked about above are just guidelines. It cannot be said enough that if you have any issues at all it is worth speaking to an immigration attorney. At a minimum, it can be worth speaking to an attorney to determine if you have any non-DACA immigration options. The future is uncertain, and the best you can do is be prepared. Save money for emergencies, make sure somebody else has authorization to access bank accounts and the like, potentially add somebody else to your mortgage, car lease, or home lease, etc. Once again, consult an attorney to know exactly what steps you may need to take-or at least try and attend one of the many free legal clinics which will be available throughout the month at locations across the nation.

DACA isn’t gone until March 5, 2018. Until then, DACA protections and work permits should remain valid. However, it is worth noting that USCIS has the power to revoke DACA status on pure discretion-basically for any reason. This underscores the biggest problem with how DACA has been treated-the uncertainty. People who’ve never lived anywhere else have been forced to live with a rug beneath their feet which may be pulled away at any moment-forcing them to live in a place they have no ties. The way DACA has been treated, it may even leave some more vulnerable than they were before it. However, there are still tools available. For now, the best that DACA Dreamers can do is be prepared and seek legal help.

DACA is on a Limited Lifespan, What Should You Do? Part 1: Renewing DACA Status

As of September 5th, it is official, President Trump has announced an end to the Deferred Action for Childhood Arrivals (DACA) program. The program, created by executive order from former-President Obama, has provided protection to around 800,000 people within the United States. These people are often referred to as Dreamers due to the similarities between DACA and the failed 2001 DREAM Act. The program allowed some immigrants who fulfilled a strict set of requirements to qualify for deferred deportation proceedings, as well as receive work permits, social security numbers, and drivers’ licenses. All things can be crucial to anything from holding a job to starting a business to receiving higher education to getting a house.

Since its origin, DACA has helped many immigrants achieve these dreams. However, as of Trump’s September 5th decision, the program is off the table for new applicants and those who applied and received protection under the program-a process that requires providing an enormous amount of personal information-on a timer with an uncertain end.

The people receiving the benefits of DACA are almost entirely people who have little or no ties outside the U.S.-living most of their formative years here. Many DACA recipients have never lived outside the U.S. whatsoever-being born and raised within the country. To qualify for protection, you needed to fulfill several requirements. A DACA applicant must:

  • Be under 36 years old (as of today);
  • Have been under 16 years old when they came to this country,
  • Have lived in the U.S. non-stop from June 15, 2007 to today;
  • Have entered the country illegally or had their legal status expire before June 15, 2012;
  • Not have been convicted of a felony, a significant misdemeanor (domestic violence, sexual abuse, burglary, and the like), any three misdemeanors;
  • Have graduated from high school, be in school, received a GED, or have been honorably discharged from the U.S. Armed Forces; and
  • Not be considered a threat U.S. national security.

DACA doesn’t provide citizenship, it instead offers “lawfully present status,” an important distinction. However, even with such substantial restrictions on the program and no citizenship on offer, hundreds of thousands-nearing a million-people have relied on the protections DACA offered.

DACAAfter the September 5th order, no further DACA applications will be considered. Any new applications received at this point will be rejected. However, this does not mean a complete and immediate end to DACA protections. For those who have made applications before September 5th it is unclear how these applications will be handled. At a minimum, there has been no statement that these applications will be rejected out of hand. Those who’ve received DACA protections will also not immediately lose what they have. The protections will last until they would naturally expire, in some circumstances they can even be renewed. No matter the situation, if you’re a DACA Dreamer Trump has put you in a tough spot and it’s important to know your rights and how to proceed. To help with this, we’ll look at the steps you can take to potentially extend your DACA protections if you’ve already signed up. What’s more, in case you won’t be able to renew your stats, later this week we’ll have an article on the implications of losing DACA protections-some of the steps you can take and what you can expect.

How to Renew Your DACA Status

First and foremost, no matter what your situation, you shouldn’t go about trying to renew your DACA status on your own. If you have any questions, or even if you don’t, seeking the help of an experienced immigration lawyer to help you with your application process is more important than ever. As we’ll discuss, time to renew is short and a mistake on an application may leave you without recourse. Fortunately, in the coming weeks there will be free legal clinics across the nation willing to help you with your application. Look online to search for these clinics, either at a home computer or at a library.

As we mentioned earlier, no new applications are being accepted anymore. So at this point if your aren’t renewing your DACA status, it will be best to look to other alternatives in seeking legal status. The final deadline for all renewal applications is October 5th, 2017, applications must have arrived at the United States Citizenship and Immigration Services Office by this date. So you basically have less than a month to get your renewal application in-thus the importance of seeking help from an attorney or a free clinic. You’ll only be able to renew for 2 more years if your DACA expiration date is March 5, 2018 or earlier. All expiration dates after this will maintain protection until they expire, but cannot seek a renewal at this point. Obviously you’ll need to still fulfill the original requirements discussed above for DACA if you seek to renew. If you’ve been convicted of a crime (DUIs are especially known as the DACA-killer) or left the education program you were in when you first applied it could seriously impact your chances of a DACA renewal and seeking an attorney’s help becomes even more important. Another potential roadblock could be if you’ve left the country without advanced parole. You must live in the U.S. continuously to receive DACA protections. The exception to this is where you receive advanced parole-basically get pre-approval to leave the U.S. These are generally granted for emergency reasons or family reasons and used to be generously granted, although that has changed in recent times. If you’ve left the country without such parole, that’s another reason to seek an attorney.

If you have advanced parole coming up, it may be best not to take it in such uncertain times. If you’re abroad on advanced parole, it’s probably worth coming home as soon as possible.

As for the documents you will need to fill out for renewal, there are two big ones with an additional worksheet tacked on-an I-821D, an I-765, and a worksheet accompanying the I-765 called the I-765W. These can be easily obtained online and will likely be available at the legal clinics in the coming month.

It sounds like a broken record, but it’s worth getting an attorney help with these forms. There is too much on the line to risk potentially losing renewal over clerical issues or mistakes on your form. For the I-821D some common mistakes include providing a physical address instead of a mailing address or providing an address that doesn’t match your I-765. You should generally apply with your most commonly used name. However, as much as possible these forms should mirror the information on your initial application and your birth certificate. As a renewal, you will only need to provide an address if you have moved since your initial application. If you have moved, it’s important that you reported this change of address soon (within 10 days) after the move. If you did not, you may need an attorney to help you clear up this issue.

The I-765 will ask for, among other things, financial information. This area often trips people up, but generally you can answer with a good faith estimate which is as accurate as possible. Annual income can take a month and multiply it by 12 or just be based of income tax. Expenses can similarly be done as your average month times twelve plus incidentals like back to school costs. Assets is simply a list of what you have, house, business, car, etc. Another thing to take note of on this form is the explanation of economic state section.  This is a good opportunity to add a personal touch to an application-focus on how DACA has effected your family and financial state. DACA renewals can occasionally be denied purely on discretion-basically for nearly no reason at all-immigration experts feel that adding a personal touch can sometimes help with this.

Similarly, it can be worth including a handwritten letter of what DACA has done for you personally with your I-821D. Once again, to try and help avoid potential discretion-based refusals.

If you’ve recently been married or had a child, this may change what you need to write on your form. However, it also may open new avenues to full citizenship. Make sure you fully explore all your options if you speak with an attorney or attend a free clinic.

The Uncertainty Can Be Terrifying

DACA was life changing for many people, suddenly losing its protection can be terrifying and devastating. This is especially true because of the enormous amount of information provided through these forms, information that could potentially be used as tools by an agency like ICE given Trump’s weakened privacy protections for immigrants. However, if you can get a renewal it could be huge. Two years is a long time and the full history of DACA has not played out. DACA will not be gone for around 6 months and where the law goes from there will be a battle played out in the courts and in how Congress chooses to address the issue. If it hasn’t been said enough already, seek the help of an attorney and find out if you are eligible for renewal.

If you aren’t eligible, you need to know your rights and what to expect as DACA disappears. While DACA is not yet gone and the battle is not yet over, it is important to plan for the worst and know what DACAs disappearance may mean for you. Later this week, we’ll have an article on just this issue. For now, consider legal support in your immediate area; chances are very good that free legal help may be available.

Parents: How High Does Your IQ Need to Be To Raise Your Children?

Amy Fabbriniand Eric Ziegler lost custody of their two sons, Christopher and Hunter, shortly after they were born. Oregon’s Department of Human Services (DHS) allegedly removed both boys because their parents had low IQ test scores.The children are in foster care, but Fabbrini and Ziegler have supervised visitation.

According to documents filed by DHS, Fabbrini tested IQ was at 72, placing her in the “extremely low to borderline range of intelligence,” and Ziegler’s about 66, placing him in the “mild range of intellectual disability.” The average IQ is between 90 and 110. Neither of them are currently employed, but thanks to Ziegler’s parents, they have steady housing. The couple each have high school diplomas and Fabbrini has had shared custody of twin boys with her ex-husband.

Interestingly, DHS has not any reported instances of abuse by the couple towards any of their children. Instead, DHS’s child welfare records attempt to show that Ziegler is negligent: “Ziegler has been sleeping with the baby on the floor and almost rolled over on him. There were also reports that Eric is easily frustrated and often forgets to feed his dog.” Ziegler claims his dog is actually well-fed and that he was simply lying next to Hunter while feeding his son.  Nevertheless, DHS has placed the children in foster care because DHS believes Fabbrini and Ziegler have “limited cognitive abilities that interfere with (their) ability to safely parent the child.”

parentsDiscrimination vs. Safety

The idea that the state can remove custody from parents merely because the parents have a low IQ should be repugnant to most people. Exactly who determines whether one’s IQ is high enough? How would such a test even measure intelligence? And why are “smart” people more qualified to raise someone else’s child? State Service Departments should have more guidance in cases like these so that they don’t become draconian. Fortunately, there enough guidelines that State Services should know better than to treat mentally disabled individuals like this.

As with any child custody case, the best interests of the children always come first. If the children are threatened or neglected, DHS should step in. However, there’s no real record that’s the case here. The only allegations are that the father doesn’t always feed the dog and that he almost slept on the baby once. Most case law features far more serious allegations and crimes than the two instances described – physical abuse, sexual assault, drunk driving, etc. Most courts would be very happy if the worse thing a parent did was sleep next to their infant son.

At the same time, we don’t want to discriminate anyone just because they’re different than “normal” parents. Disabled Americans have often faced discrimination, but we have gone further to ensure that disabled individuals are included in society. If a disabled person seeks employment or wants to continue employment, we have required businesses to accommodate their disability, sometimes even at a loss to the employer. Granted, child custody is different, since the disabled individual would be taking care of a helpless human being instead of working to provide for him or herself. Raising a son or daughter is certainly a bigger obligation than taking care of one’s self. But if we really want disabled Americans to be included in society, disabled Americans should have a chance to raise a family of their own. We can’t cut off disabled Americans from the most fundamental aspect of our culture and then pretend to be inclusive.

However, removing child custody just because of a disability would not only violate the rights of the parent, but it might also harm the children. It might bother a child to have a father in a wheelchair all the time, but not having a biological parent even though the parent is alive and willing to take care of the child might be worse. Many states have passed laws requiring a connection between a parent’s disability and parental misconduct. In other words, it’s not enough the parent might have a disability, but that the disability is somehow preventing the parent from taking care of the child. Physical or mental disability alone should not be the sole deciding factor in removing custody of a child.

Oregon State Senator Tim Knopp has introduced a bill that would codify this ideal into Oregon law, but the bill has not made any progress in Salem. If this case concerns you and you live in Oregon, consider contacting your state representative and ask him or her to support Senator Knopp’s bill.

The Legalities of Firing Nazis

Charlottesville, Virginia is on everybody’s lips. In response to the removal of Confederate monuments, neo-Nazis, KKK members, white supremacists, militia, hard right conservatives, and others gathered–many armed with semi-automatic rifles and clothed in body armor–in Charlottesville for a “Unite the Right” rally. These people gathered, hoods off and faces revealed to the public. In the process of their armed protest, violence erupted against people protesting against the ideologies of those gathered–often essentially white supremacy and ethnic genocide”–in the wake of this violence one woman lay dead and fourteen were injured after a man named James Field rammed his car through a crowd of protesters. All told, the body count to date is three dead and dozens injured.

In response to the hatred inherent in the rally and the horrific acts of those such as James Field, many online took a beautifully simple step to strike back against neo-Nazi and KKK supporters-they posted pictures of them at the rally online. People took to Twitter and posted these pictures along with text reading “Do you know me? Are you my employer? I was at a neo-Nazi rally in Charlottesville.” This immediately drew the attention of those on social media and many identified the people at the rally. At least one employer–a hot dog restaurant out of Berkeley called Top Dog–fired an employee named Cole White for his photographed participation in a gathering of white supremacists at the rally.

The release of these pictures has led to some outcry from those who attended the rally and their supporters. They cry invasion of privacy and describe posting their pictures as “doxing”-a common term for posting personal information of a third party online in order to incite harassment. Let’s quickly dismiss these arguments, that simply isn’t how privacy or privacy law works. Privacy interests under the law hinge on your reasonable expectation of privacy in what you’re doing or in the information. If you are having a phone call alone in your house, there is a strong expectation of privacy. If you take to streets, masks off revealing your affiliation with the KKK, you have no expectation of privacy whatsoever. People can take pictures, people can generally post those pictures–you have almost no expectation of privacy in things you do on public streets.

NazisThe second thing that has these rally-goers in a tizzy is the potential of more employers going along the path of Top Dog and–who would have thought–firing people who reveal themselves as Nazi’s or white supremacists. Their arguments have trended towards one of two categories–reverse racism and violation of the First Amendment by firing them for political beliefs. We’ll be discussing firing over political beliefs later in a fair bit of depth. However, let’s start with reverse racism as an argument, because it is usually patently ridiculous and almost never exists under the law. While race-based discrimination can include Caucasian people, proving a claim of discrimination against a majority group such as this requires showing a higher standard of evidence as it is extremely rare to be able to establish a majority group is treated worse than a minority group.

The Legalities of Firing Nazis

The complaint of these rally-goers over the potential of being fired for their political beliefs is a more complicated one-mostly because there is a common misconception that employers can’t fire you for your political beliefs. Unless you are employed by the government, not only can a private employer generally fire you for your political beliefs they can even pressure you into voting a certain way. Just recently, it was ruled that a police chief could fire his employees for not donating to his political campaign. Generally, when not being applied to Nazis, this sounds a little scary. However, it makes sense considering how the First Amendment works. The First Amendment protects against government action curtailing freedom of speech, religion, and association-for the most part it does not apply whatsoever to private action or private employers. This includes political action taken outside of work.

There are several situations where a politically motivated firing can still get a private employer in trouble. Where the politics behind a firing overlaps with a protected class such a race, national origin, religion, or-in many states-sexual orientation or gender identity it can give rise to separate legal issues. Similarly, allowing a workplace environment where a boss or even many employees constantly discuss issues such as banning access to specific ethnicities, races, or countries, that can easily create a hostile work environment or constitute harassment. Both can lead to legal action against an employer. Finally, an employer cannot punish political stances in a way that limits an employee’s ability to discuss terms of employment or unionization. For example, if employees feel a politician’s stances might impact their wages then an employer would generally not be able to punish them for talking about it.

All of this presumes the most common type of employment-at will employment. In this situation somebody can be fired for any (or no) reason and they can quit in the same circumstances. There are certainly situations where an employment contract may modify how an employer must act.

State laws can add some further protections for political affiliations. California and New York forbid discriminating against workers due to political views, political activities, or affiliations. However, there are exceptions where you either participate in a political activity that conflicts with your employer’s business model or it impacts your work. If an employee creates a liability to the company-such as a Nazi who might create a hostile work environment or harassment lawsuit against your business–an exemption may exist depending on the facts.

Other states have similar, but nowhere near as in-depth, laws regarding how political stances can be treated by employers. Kentucky, Ohio, Pennsylvania, and West Virginia make it illegal to fire or threaten to fire employees if any one political candidate is elected. Oregon makes it illegal to threaten an employee to influence their vote. In Washington, it is illegal to retaliate against an employee for not supporting a particular candidate, party, or ballot initiative. It’s notable that this does not include firing somebody for supporting any of the above-or provide any protection whatsoever for broader political positions. Michigan protects against direct or indirect threats to influence an employee’s votes. Florida goes so far as make threatening to or firing an employee for not voting a certain way. California, Colorado, Louisiana, New York, and North Dakota make it illegal to act against an employee for off-duty participation in legal politics. This last one is likely of the most concern. However, it only applies to legal political activity. This begs the question, is being a neo-Nazi or a white supremacist a legal political activity? The issue is not well resolved in the state courts where they’d be most relevant, but there is a strong argument that a desire for ethnic genocide is not a political position.

Yes, You Can Generally Fire Nazis for Being Nazis …and You Probably Should

For the most part, federal law has no protections for these white supremacists and Nazis. They have made their bed with their choices to appear in public and voice their support of hatred and ethnic genocide. Not only can employers fire such employees in most states, they are both morally in the right to do so and keeping these employees on may risk liability based on creating hostile work environment or allowing harassment of a protected class.

The repercussions are not over for those who chose to take to the streets in support of hatred. The criminal charges against James Fields are ongoing. GoDaddy and even Google have booted Nazi websites off their servers and search results respectively. The pictures online continue to be identified and brought to attention of employers. From here, we’ll have to see how many employers follow the example of Top Dog.

LGBT Rights: Understanding the Department of Justice In-fights with EEOC

Over the last year or so, we’ve talked quite a bit about the strides made in LGBT employment rights taken by the Equal Employment Opportunity Commission (EEOC). We’ve seen enormous steps towards extending protection of the law to those discriminated against based on sexual orientation and gender identity, if not making them a protected class in and of themselves.

Title VII forbids employers from discriminating against employees due to being a member of a protected class such as race, gender, national origin, color or religion.  It also prevents employers from retaliating, through termination or otherwise, against employees who report such discrimination. For years now, the EEOC has embraced the logic that sexual orientation and gender identity fall under the protections of Title VII–including them in the gender class.

Unfortunately, the Department of Justice (DoJ) and Jeff Sessions are determined to spend resources attacking these rights. Just a few days ago, the DoJ filed a “friend of the court brief” (a type of brief where an interested non-party to a lawsuit makes a filing to try and convince a court to rule a specific way) arguing that LGBT persons shouldn’t be. This a step down a path undoing essentially 8 years of work. The timing of the filing, the same day as the transgender ban we just spoke about, just serves to highlight the Trump administration’s stance on LGBT rights. Let’s take a look at the case, the stance of the EEOC, and the DoJ’s arguments against extending rights to the LGBT community.

The Case in Question

The case itself deals with a skydiving instructor by the name of Donald Zarda. Back in 2010, he was working for Altitude Express doing tandem dives with clients. This obviously involves being essentially strapped together. In order to assuage the worries of a woman he was diving with regarding this issue, he mentioned to her that he was gay. Her husband complained about this to the company, leading to their firing Mr. Zarda. After this, Mr. Zarda sued Altitude Express for violations of Title VII.

Mr. Zarda’s claims obviously hinge on sexual orientation being protected from discrimination under Title VII. The DoJ’s court filings argue that this is not the case and cannot be the case without an act of Congress. This specifically targets the current stance of the EEOC, taken during the Obama Administration years.

 LGBTThe EEOC’s Current Position

In July 2015, the EEOC declared as an agency that sexual orientation was a protected class as a form of sex-based discrimination.  Since then, they have been investigating claims of discrimination based on gender identity or sexual orientation. Recently, the EEOC has brought two separate federal lawsuits alleging discrimination against homosexual employees on the basis of their sexual orientation. They have had an unofficial stance favoring treatment of sexual orientation as protected under Title VII since as early as 2013. In cases as early as 2012, the EEOC had held the discrimination based on gender identity is discrimination based on sex and thus in violation of Title VII.

The arguments the EEOC makes to include sexual orientation and gender identity within the confines of sex and gender hinge on elements of Title VII which forbid discrimination based on non-compliance with norms or stereotypes. Essentially, it boils down to discrimination against LGBT persons being necessarily founded in discrimination based on their non-conformance with gender or sex norms in society–identifying with your birth gender and being heterosexual.

The DoJ is attacking this argument, as well as the power of the EEOC to make such a determination in the first place.

The Department of Justice’s Brief

The DoJ’s brief is substantial. They’ve clearly put quite a bit of time and resources into arguing against protecting the LGBT community. However, their arguments can essentially be boiled down to three things: 1) Congress has shown that they don’t want to protect LGBT persons by never amending Title VII to include them as a protected class; 2) discrimination can’t exist under Title VII unless women and men are treated differently; and 3) discrimination against LGBT is not necessarily related to gender.

Their first argument comes up several times in the brief. They assert that Congress’s failure to add sexual orientation when amending Title VII in 1978 and 1991, despite court rulings existing which refused protection on this basis, is proof Congress didn’t intend to protect LGBT persons. They say that Congress knew that LGBT people weren’t protected under the act both times they made their amendments. The DoJ says that this implies that Congress intentionally chose not to include LGBT people in Title VII’s protections.

The DoJ argues that this means that the EEOC doesn’t have the power to treat LGBT people as protected.  This probably is not the case, barring an actual act of Congress it is unlikely that the EEOC has acted beyond the purview of its role as an agency which is specifically to interpret and apply Title VII. However, the DoJ’s argument is the type that carries weight with the courts. In interpreting law, statutory interpretation often draws on the intent of Congress in making a law.  The failure to include LGBT persons is far from a deathblow to the EEOC’s interpretation but it certainly requires them to have stronger arguments backing their current treatment of the law.

Next, the DoJ argues that sex and gender discrimination only exists where men and women are treated differently by an employer. They cite a few (fairly cherrypicked) cases in support of this assertion. However, even the DoJ acknowledges that gender stereotyping creates an established cause of action for Title VII discrimination.  This leaves several holes in the DoJ’s arguments.

Gender stereotyping specifically creates a cause of action where an employee is discriminated against based on their divergence from established gender stereotypes. This has never relied upon treatment different from the opposite gender. If this wasn’t the case, why would gender stereotyping even exist as a cause of action under the law? Treating women differently from men already exists separate to gender stereotyping. If it only applies to treating women who act masculine worse than men who conform to gender stereotypes (or vice versa) then gender stereotyping as a rule becomes irrelevant. What’s more, if gender is considered as separate from biological sex (as is common practice in scientific communities these days), then transgender persons the EEOC argument still holds. A person male identifying female could receive disparate treatment from a male identifying male. In this case, although both have a birth gender of male, the case would involve a person identifying as one gender being treated differently from one identifying the opposite gender.

The DoJ tries to fight this by highlighting that a “plaintiff must show that the employer actually relied on her [or his] gender in making its decision.” This doesn’t have to mean one gender or another, just that an employer relied on the gender of the person discriminated against in stereotyping them.

Finally, the DoJ attacks the EEOC’s argument that discriminating against sexual orientation or gender identity is necessarily linked to the protected classes of sex or gender. They say, as if it encourages removing protections that a homophobic employer would discriminate against a gay or transgender person regardless of their gender. However, this once again ignores the basis of the EEOC’s argument in gender stereotyping. Even if an employer “equally discriminates” against both genders of LGBT persons, they are still necessarily discriminating based on a gender stereotype that people should have sex with the opposite sex and identify with their birth gender

The DoJ also argues that you can discriminate against gay people who completely conform to gender stereotypes other than their sexual orientation. This is held up to counter the EEOC’s argument that sexual orientation discrimination is always gender discrimination. It’s unclear however, as to how this is an argument against the practice altogether. Rather, at most, it is an argument that where there is no divergence from gender stereotypes there is no discrimination. How that would exist when a gay person is necessarily divergent from the gender stereotype of having relationships with the opposite sex is unclear.

Trump Administration is Backpedaling

The DoJ’s arguments for removing protections for LGBT have some serious issues, both from a legal analysis standpoint and an ethical one. However, they are not ridiculous on their face and are certainly capable of persuading a judge to rule in their favor.

The effort and money they’ve put in to allow discrimination against LGBT persons is, above all, an example of the Trump administration’s lack of commitment to protect the LGBT community. Despite proclaiming himself the preferred candidate for LGBT rights during his campaign, President Trump’s actions since taking office have shown him to anything but. This move is coming on the eve of revoking protections for transgender people in the military and in the wake of decisions backing off LGBT rights enforcement.

At this point, the issue is going to be more and more in the hands of state law-a patchwork of protection and utter lack of protection depending on where you live. However, more than anything, the DoJ’s actions reveal how important it is to treat sexual orientation and gender identity as protected classes of their own. This would require an act of Congress, and is thus will not happen soon. However, making these two a protected class would remove all of the DoJ’s arguments against protection. What’s more, they fit the established mold of what we treat as protected classes.

Courts have historically looked at three elements when forming a new protected class: (1) a long history of discrimination, (2) economic disadvantages, and (3) immutable characteristics. While some may argue immutability, despite substantial scientific evidence to contrary, both sexual orientation and gender identity easily check all these boxes. Until we see these two treated as a full protected class, the entire LGBT community will find it’s rights at the whim of each passing administration and that simply cannot stand.