Archive for the 'Discrimination' Category

Survivor Contestant Publicly “Outed” Highlights the Mistreatment of Transgender Community

The reality competition show Survivor has been running strong for seventeen years and is on its thirty-fourth season. But in all their seasons, never had they had a transgender contestant. And never has someone been “outed” on their show. Both happened recently.

Background

Survivor contestant Zeke Smith was outed by a fellow contestant as being transgender in an attempt to show that Zeke had the capability of being “deceptive”. Zeke’s tribemates/fellow contestants quickly came to his aid, arguing his transgender status had nothing to do with the game and was a personal aspect of his life. Although Survivor is just a reality TV show, it highlighted a genuine issue in today’s society – the misconception of transgender people and the discrimination they face.

Survivor ContestantWhat is Transgender?

A transgender person is a person whose internal sense of him or herself is different than the gender assigned at birth. It is different than one’s sexual orientation, or who a person is attracted to. In that regard, sexual orientation relates to whether a person is gay, lesbian, heterosexual, or bisexual. Just because a person is transgender does not also mean that he or she is gay or lesbian.

Approximately seven-hundred thousand people identify as transgender in the United States. A recent study showed that a staggering 41% of transgender people in the United States have attempted to commit suicide, compared with 4.6% of the general public.

Transgender Laws in the U.S.

Eighteen states and the District of Columbia have protections for transgender people, but their protections vary. For instance, Colorado, Illinois, and Minnesota ban discrimination based on sexual orientation, and defines “sexual orientation” to include gender identity. A number of states protect transgender students from discrimination or harassment in public schools. Nevada bans discrimination in employment, housing, and public accommodations such as retail stores, restaurants, and hospitals.

Additionally, there are federal laws which protect transgender people against housing and employment discrimination. In 2012, the U.S. Equal Employment Opportunity Commission ruled that discriminating against someone because that person is transgender is a Title VII violation. Similarly, the U.S. Department of Housing and Urban Development finds discrimination against transgender tenants or home buyers illegal sex discrimination under the Fair Housing Act.

Despite the laws in place to protect the transgender community, they still are bullied, fired from their jobs, passed up for raises, and discriminated against simply for being transgender.

Transgender Rights and the Bathroom

During his last term in office, President Obama issued a directive to all public schools in the country allowing transgender students to use bathrooms matching their gender identity. The declaration was signed by the Justice and Education department officials and described what schools can do if any of their transgender students were discriminated against. While it did not carry the force of law, it did impose a threat for any school that did not abide by the law as they may face lawsuits or loss in federal aid.

Consistent with his hateful propaganda and lack of support for the LGBT community, President Trump rescinded the protections for these students that President Obama created.

Continued Discrimination

The transgender community is still sadly misunderstood. During March Madness, North Carolina (the eventual winners of the tournament) was scheduled to host championship games. They were stripped of the honor by the National Collegiate Athletic Association (NCAA) because the state of North Carolina bans individuals from using public bathrooms that do not correspond with their biological sex. In other words, in North Carolina, transgender individuals cannot use the restroom of the gender they identify as, but as the gender they were born as. Eventually, the NCAA reversed course and scheduled championship games in North Carolina, but received harsh criticism for doing so.

The significance of Survivor highlighting a transgender player and the type of discrimination he faced shows that we are nowhere near inclusive civil rights for the transgender community. But at least it brought about discussion, which can hopefully lead to change.

It’s Official: Texas Voter ID Law Violates the Voting Rights Act

On Monday April 17th,  a Federal Judge ruled that the voter ID laws enacted in Texas were enacted with not only the intent to discriminate against minorities but with the purpose of discriminating against those minorities.  This is a huge ruling with implications for both the law, S.B. 14, and the state of Texas as a whole.  This ruling has the potential to leave any law related to voting coming out of Texas subject to federal approval in the future.

However, this ruling is far from out of the blue.  The story of S.B 14 has been a back and forth saga through the courts since 2011.  Let’s take a look at the history of this bill, this most recent ruling, and what that ruling means.

Texas Voter IDThe History of S.B. 14

S.B. 14 is a law which substantially limits the acceptable types of voter IDs in Texas, often in particularly odd ways.  For instance, a hunting license is acceptable ID to vote but a student ID would not.  This is just the tip of the iceberg to what represented an enormous amount of limitations on what was acceptable identification to allow somebody to vote.  While there were suggestions to make funds available to educate the public on the details of the new restrictions and assist poorer voters to obtain sufficient identification, these suggestions were shot down at every turn and nothing of the sort made it into the final law.

When this law was initially passed in Texas in 2011, the Voting Rights Act (VRA) gave the Attorney General (AG) the power to review and shut down voting laws coming out states which had historically had discriminatory voting practices–think Jim Crow and the South.  With the effect the limitations would have and the lack of education on these effects in mind, the Attorney General at the time-Eric Holder-exercised this power and shut down the law.  While challenged this in the courts, AG Holder’s decision was upheld.

However, in 2013, a Supreme court ruling known as Shelby substantially limited the powers of the VRA.  Section 5 of the VRA allowed the federal government to pre-clear any voting laws coming out of states that previously had issues, as discussed above.  In Shelby, the Supreme Court analyzed the constitutionality of the VRA and Section 5 in particular.  They ultimately determined that, while Section 5 itself was constitutional, Section 4 was not.  Section 4 was the part of the VRA that allowed enforcement of Section 5.  Without this section, the pre-clearance requirements of the VRA were rendered essentially toothless.  The reasoning behind the Supreme Court’s decision was that justifications for the VRA’s restrictions-the history of discriminatory voting practices-was not the same concern it was when the VRA was enacted in the 60s.  Whether this is true or not, the Supreme Court decided that the provisions of the VRA needed to be reviewed by Congress if they were to remain in effect.

In the wake of this decision, many states-Texas, Mississippi, North and South Carolina-passed voting laws which had previously been shut down as potentially discriminatory by the federal government.  Among these was S.B. 14.  However, the law was immediately challenged in court.  In 2014, the law was determined to have discriminatory intent and purpose and struck down.  It was then appealed to the 5th Circuit Court of Appeals, which upheld the ruling in part, but asked the lower court to revisit the matter of discriminatory intent.

This brings us to ruling of last week.  However, as opposed to the initial ruling, there was one huge difference–AG Jeff Sessions.  Jeff Sessions has made it clear that the potential for discriminatory voting laws is not a priority under his watch, and told his attorneys at the Department of Justice to drop this case altogether.  Despite this, and a request from the DoJ plaintiffs to drop the case, Judge Ramos-the judge handling this case-looked to the facts already submitted in coming to a resounding yes on the discriminatory intent and purpose behind S.B. 14.

Discriminatory Intent and Discriminatory Purpose

Discriminatory intent is shown where racial discrimination is a-although not necessarily the only-motivation behind a governing body’s decision.  Discriminatory purpose goes a little further than intent, implying that the law was enacted because of the adverse effects on an identifiable group.  A law demonstrating discriminatory purpose or effect is unconstitutional. A discriminatory impact is not enough on its own for a law to be unconstitutional on its face, there needs to be at least a partial discriminatory motive.

Judge Ramos found such an intent and purpose behind S.B. 14.  In determining to this, she looked to a number of things.  She noted not only the disproportionate impact that the carefully chosen ID limitations had on minorities, she also pointed to racist remarks made by legislators during deliberations on the law, the bypassing of usual procedures in passing the law, and the outright refusal to include anything which would help the public understand the laws.  Additionally, any amendment proposed to make the provisions less harsh–easing registration procedures, reducing costs to purchase the IDs necessary to vote, expanding the acceptable types of identification-were all rejected with essentially no consideration.  In fact, the Texas Congress was specifically advised of the disproportionate impact that the law would have and advised on a number of ways to lessen this disproportionate impact on minorities-they rejected all of them.

The stated goal of the bill was to avoid voter fraud.  However, despite the Texas Legislature being shown evidence that in person voting happened in about two out of every twenty million cases in the last decade and provided evidence that mail-in voting was much more commonly vulnerable to fraud, the Legislature didn’t feel the need to include any provisions on mail-in voting and focused exclusively on in-person voting.

With all this in mind, Judge Ramos ruled that she could find no non-discriminatory purpose for how Texas had approached S.B. 14.

What Will This Ultimately Mean

Unfortunately, despite years of rulings saying this law was intended to prevent minority voters from being represented at the polls, there’s a good chance this law will win out in the end.  Jeff Sessions has, as Attorney General, told the attorneys of the DoJ to cease litigating the case completely.  While Judge Ramos followed through with the case, Texas will certainly appeal her decision.  This appeal will probably have no lawyers opposing Texas, unless an outside group steps in to handle the litigation.  If this is the case, the chances of beating this law drop precipitously.  However, should somebody step in to help fight the law this is a case that has a good chance to make its way to the Supreme Court.  As it stands, even with the addition of Justice Gorsuch, the makeup of the court makes it likely that this law would be struck down and Texas would continue to require preclearance from the federal government for any new law effecting voters.

This hasn’t been a particularly good year for Texas when it comes to their voting process being ruled racially discriminatory.  Two separate courts have already ruled, this year alone, that Texas’ district maps are gerrymandered to “pack and dilute” minority votes.  The determination of Shelby limited the VRA on the premise that discriminatory voting practices were a thing of past generations.  However, this ruling and many other rulings this year have shown the opposite.  It is unlikely that congress, in its current state, will pass any legislation giving teeth back to the VRA.  However, as cases like this are appealed to the Supreme Court, they have the potential to create precedent for a future court ruling reevaluating Shelby.  However, it seems unlikely in the near the future.  Only time will tell how momentous this ruling may be, for now Judge Ramos’ ruling will serve to protect voting rights for minorities in Texas.

Travel Ban 2.0: Trump’s Second Attempt to Ban Immigration

The initial executive order out of President Trump’s White House regarding limiting immigration to the U.S, widely known as the “Muslim Ban,” was an unmitigated disaster.  Rolled out overnight, the order caused chaos across the country as agencies tried to put the order’s new rule into force.  It also drew immediate legal challenges from numerous states, all challenging the order-in whole or in part-as unconstitutional.  Several of these legal challenges succeeded; most notably a challenge out of the state of Washington which culminated in a preliminary injunction–an order preventing the “Muslim Ban” from taking effect whatsoever until the Washington case is fully litigated.  In the face of court order saying that the order was most likely unconstitutional, and the fallout of the original implementation of the order, President Trump did something we perhaps should all have expected-he signed and put into force a nearly identical order.  On Monday, March 6th, President Trump issued an executive order titled “Executive Order Protecting The Nation From Foreign Terrorist Entry Into the United States.”

In the past we’ve already covered the effects of the ban, the constitutional problems intrinsic to the ban, the many lawsuits brought after the ban was passed, and the injunction which ultimately put an end to it.  So with that in mind, you’ve got to know that we’ve got some thoughts about Trump’s second iteration of the ban.  So without further ado, lets dive into it–the changes between this new order and the original order courts ruled to be likely unconstitutional, the chances that this order will stand, and the legal challenges the order already faces.

How is This Order Different From the One Courts Already Stopped?

travel banThe short answer, it isn’t very different.  The order still targets specific Muslim majority countries, barring immigration from those countries for 90 days. It also still cuts the number of refugees allowed to be admitted to the U.S. per year by more than half.  However, with this being said, there are some important changes in effect from the initial order–mostly designed to make the order appear more kosher to the courts.

The new version of the order has removed the indefinite ban on the U.S. taking in any refugees out of Syria.  Instead, the order includes a 120-day freeze on taking in those refugees.  However, the order also includes the ability to renew the ban for a longer period of time upon review.  It also doesn’t include any limits on the number of times the ban can be renewed, so in effect the ban could very well be indefinite.

The order also has removed Iraq from the original list of countries slapped with a 90-day immigration ban, leaving only the other 6 original countries.  The reason for this change is a request from the Defense Secretary, fearing that such a ban would injure the U.S.’ ongoing efforts to fight ISIS in Iraq.  The order doesn’t take a ban on immigration out of Iraq off the table though, threatening to put the country back on the list if Iraq’s  leaders don’t increase their amount of intelligence they share with the U.S.

The new crack at the ban also has eliminated language specifically offering preferential immigration status to “persecuted religious minorities.”  This was one of the most widely criticized elements of the order, both by the public and in legal challenges to the order.  The thought being that the provision was designed to favor other religious groups over Muslims.

As opposed to the frenetic same-day introduction of the last immigration ban, the Trump administration has allowed for a slower implementation and time to prepare for implementation.  The ban only goes into effect ten days after its signing–March 16.

The order has a number of other changes.  The order includes specific details about why the six countries hit with the 90-day ban were selected; presumably to strengthen the order against the many legal challenges saying the order was targeting countries based on their Muslim majority.  The order focuses its details sections on the statistics regarding terrorism for each country selected.  The order also no longer affects current visa holders or refugees already granted asylum.

So you’ve likely noticed that these changes are, intentionally, targeted at trying to make the order stand up to the scrutiny of the courts.  In order to determine whether it has succeeded, let’s look at why the last order got hit with an injunction.

Why Was the Last Order Blocked?

Since we’ve covered this issue in previous articles, we’ll keep the discussion of why the last order couldn’t pass constitutional muster on the short side.

A preliminary injunction is granted where the party seeking it can show that they are likely to succeed in their arguments, there would be irreparable harm if the thing they seek to stop isn’t stopped immediately, there isn’t a public interest against granting an injunction, and the party seeking the injunction will be more harmed by what they seek to stop than the party you’re bringing the injunction against will be harmed by the injunction itself.  In the case brought by Washington, the court ruled that they were likely to succeed in their arguments that the immigration ban unconstitutionally singled out targets based on religion or national origin–in other words the order discriminated likely discriminated against protected classes.

Will the New Order Stand Up in Court?

The White House certainly believes its changes, although extremely minor in practice, are enough to allow the order to pass muster.  In fact, the Department of Justice has already filed briefs saying that the revisions have rendered all the legal cases regarding the first order moot.  In other words, the injunction has no further effect and the new order must be challenged or not on its own merits.

However, as of March 9th, Washington state lawyers have taken the stance that the changes are so minor as to amount to essentially putting lipstick on a pig.  They argue that the prejudicial purpose behind the order remains and its most offensive portions are essentially untouched.  For this reason, they’ve asked the federal judge who placed the preliminary injunction on the original order to expand his order to cover the “Muslim Ban 2.0.”  A similar attempt to challenge the ban has been brought by Minnesota and Hawaii.  The Attorney Generals for Massachusetts, New York, and Oregon have all made it known that they intend to join in on the challenges brought by Hawaii, Minnesota and Washington.

So will the new and improved “Muslim Ban” stand up?  We’ll have to see how the courts rule.  However, the order has changed very little in actual effect.  It still targets specific nationalities in almost exactly the same manner and it still exclusively targets Muslim majority countries.  The same reasons it was likely unconstitutional before are all still there.  Even if the order itself has removed some of the language making obvious attempts to target Muslims and provided an alternate explanation, Trump’s own statements on immigration and the previous order still can be used as evidence of the discriminatory purpose to the new order.

Nothing in law is ever truly certain, but the definition of insanity is doing the same thing and expecting different results.  The new ban is very similar to the previous order, it seems unlikely that it will pass constitutional muster with such minimal changes.

What our clients think

At LegalMatch, we value our client’s opinion and make it a point to address their concerns. You can refer to our reviews page if you want to know what our clients have to say about us.

Hate Crime: The Feds Address Kansas Shooting

The nation has seen racial tensions, while far from new, enter the public consciousness in a way that has likely not been seen in decades.  From the recent travel ban, to the many reported shootings of minorities by police, to high profile trials with a focus on race such as the case of Trayvon Martin or Eric Garner.  Many would argue that the election of last year was characterized to a large degree by these racial tensions; because of this environment the scrutiny on the response to the sort of tragedies that stem from such tensions is properly higher than ever.  Just last week, one such tragedy struck hard in Kansas after a man shot two Indian-American citizens after heaping racially tinged verbal abuse upon them–killing one of the men.

On Thursday, February 23rd, there was a University of Kansas vs TCU basketball game on the television at the Austin’s Bar and Grill.  However, while Srinivas Kuchibhotla and Alok Madasani enjoyed the game at the bar as they often did after finishing their work day as engineers for the GPS company Garmin, one Adam Purinton reportedly shouted vitriol at them including ethnic slurs and suggestions that they did not belong in this country.  Adam Purninton was eventually asked to leave due to the scene he was causing.  He left, but later came back bearing a gun.  Witnesses reported him shouting racial slurs and telling the two engineers to “get out of my country” before opening fire.  Mr. Purinton shot both men, killing Mr. Kuchibhotla.  He shot another patron of the bar, Ian Grillot, as the man pursued him as he fled the scene.  Mr. Purinton was later arrested after telling an Applebee’s employee that he needed to lay low because he had just killed two Middle Eastern men.  He has since been charged in Kansas with one count of premeditated first-degree murder and two counts of attempted first degree murder.

What is conspicuously absent from this list of charges is an allegation that Mr. Purinton’s actions were a hate crime.  The silence on this issue in the days immediately following have been the cause of great consternation, especially considering the substantial evidence of a racial motivation behind Mr. Purinton’s acts.  To better understand this outrage, it is important to understand exactly how hate crime laws work and the response that has come out of the federal government.

Hate CrimeWhat is a hate crime?

The question is one that I’m certain most feel they could answer intuitively–a crime motivated by hate.  This is fairly accurate when speaking about hate crimes more generally.  However, as with most things in law, the exact reality is a bit more complex.

We’ve discussed exactly how hate crimes work a bit in the aftermath of the mass shooting at Pulse Nightclub in Orlando.  However, it’s good to review the details a little bit because this case has some unique issues with it.  As mentioned above, the basics of a hate crime law are relatively intuitive, although the requirements to prove a hate crime can be a bit more complicated to establish.  Hate crimes can generally be discussed as crimes motivated by bias or prejudice against a protected group.  When a crime is considered a hate crime, an enhanced penalty is applied to the perpetrator.  A few examples of crimes that can be enhanced when motivated by prejudice against the victim include: assault, murder, rape, sexual assault, vandalism, defamation, denial of certain rights, and others.

So, looking at the definition of a hate crime, what would need to be proven to show Mr. Purinton committed a hate crime would be his mental state going in–that the motivation behind the shooting was bias or prejudice against a certain race.  The fact that he was completely incorrect in his assumption of the race of the men he shot would not generally be relevant to such a determination.  If the witnesses to the shooting, and the Applebee’s employee Mr. Purinton later confessed his crime to, have accurately related what happened then what happened was almost certainly a hate crime.  Shouting racial epithets and telling Mr. Kuchibhotlamand Mr. Madasani to “get out of my country” immediately before opening fire is pretty dang strong evidence that Mr. Purinton’s actions were motivated by racial hatred; not to mention the slurs he reportedly threw before being asked to leave the bar.

You may be asking, if the evidence is so strong then why didn’t Kansas bring hate crime charges?  The answer is that hate crime laws are different state to state and under federal law.  While 45 of the 50 states have hate crime laws, exactly what constitutes a protected group varies from state to state.  Some of the most common protected groups include race, age, sex, gender, disability, gender identity, and sexual preference or orientation.  In 31 states, a hate crime also gives rise to a civil cause of action above and beyond the enhanced criminal charges brought against the perpetrator.  This civil lawsuit is brought by the victim of the hate crime or their surviving family.  What’s more, while most states have hate crime laws, not every state has a hate crime statute.  The distinction here is that a statute creates an independent charge of a hate crime, many states instead opt for laws allowing enhanced penalties if it is found a person was motivated by hate after they are found guilty of a base crime.  Kansas, while it has allowed for enhanced sentencing based on where a crime is motivated bias or prejudice since 2009, has no independent hate crime charge.

While Mr. Purinton could face 50 years in prison should he be found guilty of the charges already brought, there is no law in Kansas under which a hate crime charge or enhancement could be brought to bear against him.  This means that any hate crime charges brought against Mr. Purinton would have to be brought at the federal level.  This has been a large part of why there has been such intense scrutiny on the federal government’s response to the horrendous crime.

Slow Response from the White House and the Federal Government

In the wake of the shooting, public outcry for the White House to respond to the shooting and declare the act a hate crime was near instantaneous.  However, days rolled on with no comment whatsoever from President Trump on the shooting and no word on whether the federal government had any plans whatsoever to investigate.  The only comment out of the White House press secretary Sean Spicer saying “any loss of life is tragic..but I’m not going to get into.”  Mr. Spicer then spent the remainder of his short commentary on the shooting saying that he wanted to make sure everybody understood that there was no correlation between the shooting and Trump’s comments and stances on immigration–specifically when it comes to Muslims and the Middle-East.

Many questioned the choice of President Trump to stay silent on the issue and, despite Sean Spicer’s protestations, much of the criticism stemmed from Trump’s own history when it comes to immigrants and Muslims.  Pakistani-American comedian Kumail Nanjani commented “”The President could say “Don’t shoot innocent brown people. It’s wrong.” And he would save lives. But he won’t. & that doesn’t surprise us.”  In India, there was immense media coverage questioning why President Trump didn’t immediately condemn the attack.

President Trump has espoused a fair bit of rhetoric damning immigrants, refugees, and Muslims in particular.  Calling immigrants from Mexico rapists, proposing a law requiring all Muslims to register with the government, introducing travel bans specifically targeting Muslim-majority countries.  He made a point of inviting three people with relatives killed by illegal immigrants to the same speech where he mentioned the Kansas shootings.  It’s easy to see how one might worry that these statements might embolden those who might commit crimes based on hatred, why it was so important that President Trump immediately condemn the crime, and why Mr. Spicer felt such a need to distance the President’s stances and statements from this shooting.

The President’s long silence on the shooting was especially troubling considering how quick President Trump has been to comment on violent incidents abroad, often to the point of misattributing the violence to an entirely different group of perpetrators (namely Muslims and refugees) or simply citing incidents that did not occur at all.

There is No Room for Bigotry and Hate

However, thankfully, the White House’s silence on the matter was not a permanent one.  Nearly a week after the shooting occurred, President Trump briefly mentioned the shooting in an address to Congress.  In an official statement, the White House condemned the shooting as an “act of racially motivated hatred.”  The FBI has also officially begun an investigation, working alongside local police, into the shooting as a hate crime.

We should never hesitate to condemn acts of bigotry and hate within our community; neither should out leaders.  While the federal government has eventually responded, it’s halfhearted approach will do nothing to deter acts of hatred.  On March 4th, a Sikh man was shot in his own driveway in Washington while working on his car.  A man with a mask over the bottom of his face approached him, told him “go back to your own country,” and shot him to death.  The White House has had no comment.

Uber is Under Fire, Again, for Sexual Harassment

Uber, the online transportation company whose app allows its users to hire private drivers, is making headlines again. About a month ago, angry customers began tweeting the #DeleteUber hashtag after Uber decided to suspend surge pricing during a taxi strike at JFK airport in protest of President Trump’s immigration ban. Customers accused Uber of strikebreaking and taking advantage of the immigration ban in order to promote itself.

The #DeleteUber hashtag has again appeared on social media following a claim of sexual harassment by a former employee.  Susan J. Fowler, a former Uber engineer, released an essay reflecting on her two year employment. She described it as “a strange, fascinating, and slightly horrifying story,” recounting a time when a manager propositioned her for sex.

Uber’s Response to Sexual Harassment Allegations

UberFowler claims that she complained to Human Resources about her manager’s request for a sexual relationship. In response, H.R. told Fowler that this was his first offense and that they were not going to reprimand him for his behavior. Instead, they made Fowler feel like she was in the wrong and encouraged her to transfer to a new team or risk getting a bad review from her manager. Feeling like she had no other choice, she ultimately transferred teams. Fowler later discovered the manager had propositioned several female Uber employees for sex and H.R. turned a blind eye to his behavior because he was a “top performer”.

In response to Fowler’s essay, Uber CEO Travis Kalanick has hired two attorneys to independently investigate the accusation.

What is Sexual Harassment?

Sexual harassment is a type of employment discrimination consisting of unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

There are two types of sexual harassment: quid pro quo and hostile work environment. Quid pro quo harassment occurs when a supervisor or an authority figure requests sex, sexual favors or a sexual relationship in exchange for either not firing or punishing the employee or in exchange for favors, such as a promotion or raise.

Hostile work environment harassment occurs when there are frequent or pervasive unwanted sexual advances, comments or requests. It can also occur when there is other verbal or physical behavior, like sexual jokes, displaying inappropriate offensive material (such as watching porn on your computer screen in the workplace), or persistent unwanted interactions, such as asking for dates continually.

Other Allegations of Sexual Harassment

According to Fowler’s essay, there were several female employees who complained that the same manager propositioned them for sex and when these women reported the behavior to H.R., they were told it was the manager’s first offense, just like Fowler. Since Fowler’s essay surfaced, another female employee has come out and said her manager groped her breasts at a company retreat in Las Vegas. Other Uber female engineers have acknowledged that Uber has a systemic problem with sexism. There may be more stories of sexual harassment that have not been publicized due to fear of retaliation or non-disclosure clauses in their employment contracts.

Can Fowler Sue Uber for Sexual Harassment?

While Fowler certainly can sue Uber for sexual harassment, she is unlikely to prevail. Her essay recalls an instance where her superior requested she engage in a sexual relationship with him. The sexual conduct did not appear to be made a term or condition of her employment at Uber. Further, Fowler was neither promised a benefit if she acquiesced, nor threatened harm if she refused. For this reason, a claim of quid pro quo sexual harassment would not be found.

Neither would a court of law find Uber guilty of a hostile work environment. Fowler describes a single incident. One of the key elements of hostile work environment sexual harassment is that the conduct must be both severe and pervasive. In other words, the behavior must last over time, not just be a singular incident. It is important to note that the conduct must be pervasive with regard to a particular employee and continuous over time. Even though Fowler’s manager propositioned other women at Uber for sex, it is unclear whether he made sexual advances to any one employee more than once and over a long period of time. What we do know is Fowler was approached once. Without more evidence of continuous harassment, hostile work environment sexual harassment would not be found.