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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.

Transgender Rights are At Risk Under Trump

Through the Department of Justice, the Trump administration makes its priorities known by deciding what sort of cases to pursue and what cases, generally cases brought by states or private parties disputing the validity of federal laws or actions of the federal government, to defend against in court.  Up until about a week ago, the Department of Justice has been defending a case which had the potential to strengthen the protections against discrimination for transgender people–no more.

A few months before the end of his presidency, the Obama administration issued a statement to public schools that trans students were protected under federal civil rights law and that schools needed to let those students use bathrooms aligned with their gender identity.  Several states brought lawsuits over the statement, declaring it a misinterpretation of federal law.  Just recently, the Trump administration announced that the Department of Justice would be withdrawing from defending all these lawsuits.

Transgender Rights

This isn’t really a surprise, Trump called the Obama administration’s approach on trans rights overreach on the campaign trail and has certainly not made LGBT rights his priority.  However, the step certainly is a giant step backwards in terms of protecting the rights of trans people.  In order to understand the exact effect of the move, let’s look at exactly what the guidance from the Obama administration did and didn’t do, the effect these cases could of had if they had gone forward, and the effect of the Trump administration’s decision to withdraw altogether from

Effects of the Obama Administration’s Guidance

The Obama administration’s statements came a time when trans rights were squarely in the public eye–right on the tails of the Department of Justice and North Carolina initiating a lawsuit over a law out of North Dakota barring laws across the state protecting the LGBT community from discrimination.  This law was one of many along the same lines passed or moving forward through the country.  The Obama administrations goal was to combat laws allowing, or in North Carolina’s case enforcing, discrimination against the LGBT community

However, the guidance the Obama administration was just that-guidance.  It wasn’t a law, that would take an act of Congress.  It didn’t even have the legal force behind and executive order or presidential memorandum.  Instead, it was exclusively a change in policy on the part of the Department of Justice and the Department of Education.

However, calling it just a policy change belies the full effect of the statement.  The statement determined that it was the view of President Obama, and the agencies under his purview, that schools, sports teams, housing, school fraternities or sororities, and the like were all legally required to allow a transgender person to use a bathroom–or locker room–that aligned with their gender identity.  The statement based this conclusion on Title IX of the Education Amendments of 1972.  Title IX forbids schools from discriminating based on a student’s sex.  The statement determined that a student’s gender identity was their sex for purposes of sex discrimination.  Thus, it further argued that bans revolving around gender identity spring forth from expectations and stereotype of how somebody assigned a specific birth gender should behave and appear.

So basically, the statement said that, while schools could include things allowing additional privacy where transgender students were using a bathroom or changing room, outright denying them access to bathrooms or locker rooms of their actual gender identity was a violation of federal law.

So this wasn’t a law or an executive order, but it had a very definite legal effect.  By determining that such actions violated federal law, it would mean an end to federal funding to schools–and even states–which refused to follow the Obama administration’s guidance.  As you might imagine, the response in the courts from schools who refused to change their rules to follow the statement was basically immediate.  Lawsuits cropped up quickly, and a federal court in Texas even put a temporary injunction on the rule–preventing it from taking effect across the nation.

The Department of Justice has been defending these lawsuits, and their outcomes could have had serious, far-reaching results as legal precedent.  The same arguments made for how to approach gender in sex discrimination could have been extended to more housing rules, rights in the workplace, and other situations involving discrimination against transgender people.  However, with the Trump administration withdrawing from the defense of these lawsuits there is no real chance of this now.  Instead, the guidance itself will almost certainly–barring action by Congress or a future President–never take effect.  Any possible ripple effect, benefiting trans people throughout the United States of America, is put on hold at a minimum.

The Trump Administration’s Withdrawal and Similar Litigation Around the Country

As mentioned above, this withdrawal is not particularly surprising.  However, it is disappointing to the nearly one and half million transgender people in the U.S. who have seen a light of hope, with the potential of protecting their right to their gender identity, snuffed out.  Fortunately, these lawsuits weren’t the only litigation of their type going on around the country.  Unfortunately, it’s uncertain how long those lawsuits and policy changes will stay in play.

In the last few years, the Equal Employment Opportunity Commission (EEOC) has been hard at work trying to ensure the rights of the LGBT community in the workplace.  Using similar arguments to those in the Obama administrations statements, the EEOC has been involved in a few lawsuits asserting that sex discrimination protections incorporate protections based on sexual orientation and gender identity.

The EEOC announced just last week that they would continue to appeal a case of sex discrimination where a transgender funeral director was fired for refusing to comply with their employer’s sex specific dress code.  The EEOC asserted the arguments we’ve discussed above in support of the funeral director’s right to their gender identity, in response the funeral home based their defense on the Title VII exemption in the Religious Freedom Restoration Act (RFRA)–essentially arguing that they have genuinely held religious belief and Title VII anti-discrimination rules are substantially interfering  with their practice of that religion.  While the RFRA is, in much of the country, not allowed in cases brought by non-government entities, in an odd twist the fact that this case was brought by the EEOC allowed the defense.  The case itself includes some complicated and contentious areas of evolving law, from sex-based dress codes to the proper application of the RFRA in Title VII cases.  All of this could lead to huge strides when it comes to LGBT rights and clarifying the interaction of rights and workplace discrimination.  However, even this litigation may be short lived.   The EEOC have recently released a statement that their position on the case may change given the stances of AG Jeff Sessions and once General Counsel for the EEOC is confirmed.

The rights and protection of the LGBT community, and specifically transgender people, are more at risk then ever.  The courts are often where the most substantial changes in rights and protections come from and the Trump administration has shown that they will not stand up for the rights of LGBT citizens.  The sad truth is, if they continue as they have been, much of strides this country has taken in protecting right will have been for naught.

Immigration Ban 101: Understanding Trump’s Executive Order

Trump’s executive order on immigration has created mass confusion, waves of legal battles, and incited outrage across the nation.  In the chaos that ensued after the executive order dropped, legal professionals began filing lawsuits that eventually led to a temporary suspension of the ban. Although the initial decision by the Ninth Circuit Court of Appeals is foretelling the executive order would ultimately be held unconstitutional, let’s take a closer look at the immigration policies Trump wants to implement.

Immigration Ban

Who’s Covered?

  • The order suspended new refugee admissions for 120 days, which suggests new vetting procedures were on the way. Although Trump says he wants a heavier regulated process, the U.S. refugee admissions system is already strict.  Refugees typically apply through the Office of the United Nations High Commissioner for Refugees (UNHCR), which then goes through several databases, including the State Department, the National Counterterrorism Center/FBI’s Terrorist Screening Center, the Federal Bureau of Investigation, Interpol, Drug Enforcement Administration, and the Department of Defense.  Currently, it can take anywhere from 18 to 24 months for the vetting process.
  • The order suspended the Syrian refugee system Last year, Trump’s Vice President, Mike Pence, tried to stop resettlement of Syrian refuges into the State of Indiana, but was blocked by an appeals court who ruled his attempt as “nightmare speculation”.  The order also requests review of a state’s right to accept or deny refugees for resettlement in their state, which is no doubt a nod to Pence.
  • The order bans entry into the U.S. from seven majority-Muslim countries for 90 days. Those countries include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, but more countries could be added at any point under the discretion of the Department of Homeland Security.  The ban was unclear as to whether the restriction included legal U.S. residents, which created chaos for individuals that were traveling when the order hit.  The Department of Homeland Security later clarified that some legal residents that didn’t pose a legal threat would be allowed in.  I’m not sure you can call that much of a clarification, though, as it’s still vague.
  • The ban included denial of entry of dual-nationals. This means even if you hold a passport from another country, but also one from one of the 7 above-listed countries, you could be banned from entering the U.S.
  • Prioritize refugees based on religion. While Trump claims it isn’t a ban on Muslims, there is a small provision within the executive order that says priority should be given to those of a minority religion, implying those religions other than Muslim will be given preference.
  • Lower the total number of refugees to be accepted from any country in 2017. This isn’t a new concept, as each year the president determines how many refugees will be admitted into the U.S., but the number is down from the previous 110,000.  While the U.S. has traditionally been one of the largest refugee resettlement countries in the world, this could easily change as Trump lowered the number to 50,000.

What Can We Expect to See Next?

While the current executive order was blocked by a federal court, this could all be a moot point as Trump has already announced his plans to rescind the current order and issue a new one that’s tailored around the Ninth Circuit Court of Appeal’s decision.  Sounds like a façade, only to appease the constitutional issues raised by ban, as Trump has made his intentions clear about who he wants to allow in the country.

One of the main arguments against the ban is that it’s unconstitutionally discriminatory based on religion.  Even if a new executive order is issued, it doesn’t seem likely Trump can avoid another lawsuit for discrimination because who he wants to prohibit from entering the country is entirely grounded on a person’s religion and nationality.  At this rate, we’re likely to see a constant stream of legal battles over the next 4 years.

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Trump’s Immigration Ban: Domestic and International Rights at Threat

Banning a whole class of individuals based on their nationality is not only hateful, but legal professionals around the globe agree Trump’s immigration ban has a number of constitutional and international human rights issues to overcome.  The immigration ban not only restricts access into the United States for those from select black-listed countries, but it temporarily stops entrance for refugees seeking political asylum and permanently stops entrance for Syrian refugees.

Trump Immigration Ban

First Amendment

The Establishment Clause of the 1st Amendment guarantees religious equality and restricts the government from establishing (or supporting) any one particular religion.  While Trump’s team insists the immigration ban is not a blanket ban targeting Muslims, it’s hard to refute that argument based on Trump’s previous campaign statements.

On its face, the text of the order doesn’t exclude Muslims, but the text of the ban does state priority is to be given to refugees of a minority religion.  Since the ban affects 7 Muslim-majority nations, this language strongly indicates a preference for non-Muslim religions.  I can’t stress enough how much this practice would be in direct contradiction to the establishment clause.

Fifth & Fourteenth Amendment

Trump’s executive order singles out individuals based on both their nationality and religion and encourages discriminatory visa processing procedures, all of which raise discrimination issues that violate due process rights.

Due Process rights under the 5th and 14th Amendment require fair treatment, both procedurally and substantively.  Both the way the law pans out and the way the law is written matter.  Not only must the government provide fair and sufficient notice before denying someone their life, liberty, and property, the government cannot enact laws it doesn’t have the authority to enact.  While executive orders have been traditionally accepted, presidents don’t have the authority to enact laws that are discriminatory and contrary to the principles of the Constitution and laws of our nation.

Trump’s blanket ban provides no processes or procedures for denying entrance into the U.S., which left many stranded, including legal visa holders.  There’s a strong argument those travelers were denied their procedural due process rights.  They were given no notice or chance to make alternative travel plans.  Attorneys scrambled to file writs of habeas corpus demanding that, as asylum seekers on U.S. soil, the government was required under the Immigration and Nationality Act to at least grant asylum hearings, something the order didn’t allow for.

U.N. Experts Say Ban Violates International Human Rights Obligations

In the midst of lawsuit upon lawsuit demanding a halt on the immigration ban for constitutional violations, a group of U.N. human rights experts have weighed in and say the United States is now in violation of its international human rights obligations.  Under non-refoulement principles, the U.N. has long held that nations cannot expel or return a refugee to an area where their life or freedom are threatened.

Will the Ban Hold Up in Court?

After multiple lawsuits were filed, judges across the country issued injunctions blocking certain aspects of the executive order.  The state of Washington filed suit on the order as a whole and U.S. District Judge James Robart blocked the order in its entirety.  Although Trump appealed the decision, normal screening procedures commenced and will remain in effect until a decision is handed down.

Despite Trump’s offensive tweets that questioned Judge Robart’s opinion, Trump seems to be a minority on this one.  Sixteen other state attorney generals have joined the lawsuit.  Massachusetts, New York, Pennsylvania, California, Connecticut, Delaware, Illinois, Iowa, Maryland, Maine, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and the District of Columbia have filed a brief as “friends of the court” to argue against the ban.  At least 127 tech companies have also filed briefs in opposition to the ban.

Trump cited a need to protect our nation from terrorist threats as the basis for the executive order, but it’s arguable the ban will do nothing to actually prevent future attacks.  Media attention has focused on the fact that none of the most recent attacks in the U.S. have originated from the countries on Trump’s list.  Certainly, national security interests can undoubtedly outweigh constitutional protections, but that should only be on a case-by-case basis and not a blanket ban based on nationality.  While courts traditionally have given the executive branch great leeway when it comes to immigration policy, it’s not likely this particular order will pass constitutional muster.