Archive for the 'Discrimination' CategoryPage 2 of 19

Discrimination Protections are Reduced After Missouri Signs Bill to Protect Businesses

Missouri is rolling back employment discrimination protections to protect businesses from frivolous lawsuits. At least, that’s the rationale Governor Eric Greitens would have everyone believe. The new law, SB 43, will go into effect beginning April 28 of next year. Previously, employees in Missouri only had to show that discrimination was one factor in their demotion or dismissal to bring a suit. Under the new law, employees must show that discrimination was “the motivating factor” or primary cause of their demotion or termination. Additionally, the bill would cap the amount of damages that an employee could receive and would restrict such suits to businesses. Employees would not be able to sue individuals, such as their supervisors, for discrimination. The bill applies the same restrictions to housing and public accommodations.

discrimination protectionsThe bill is extremely controversial in Missouri, in part because the sponsor of the bill, State Senator Gary Romine, owns a business that is being sued for alleged discrimination.  The employee in Romine’s case alleges that his supervisor calls him “nigger” and that there is a map in the back of the store circling a black neighborhood with the words “do not rent” underneath. Romine denies any wrongdoing in the case and insists that his bill was aimed at frivolous lawsuits without any consideration for the case pending against his company. Nevertheless, the NAACP and other critics accuse Romine of self-dealing while sponsoring and passing the bill.

The Downfall of Mixed-Motive Cases?

As promised, these restrictions will doom many employment discrimination suits. In an at-will employment position, an employer can fire a worker for any reason except for reasons that are prohibited by law. However, it’s rare today for employers to admit to terminating an employee purely for illegal reasons. Instead, the suits often involve cases where the employer dismisses an employee for a mix of legal and illegal reasons. For instance, if a woman is denied a promotion because her performance review says “she berates the staff” and that she “overcompensates for being a woman,” she might have an actionable suit based on the latter comment. However, the former comment would be a justifiable reason for the business to deny her a promotion.

Under federal law, an employer that has both legitimate reasons and illegitimate reasons will be liable for discrimination. If the employer can prove that it would have treated the employee the same without the illegitimate reasons though, reinstatement, back pay, and future pay will be denied to the employee. States have taken different positions on mixed motive discrimination. Many states have adopted the federal model. Other states permit the employee to prevail even he or she can show that an illegal reason exists, regardless of whether there were other legitimate reasons.

The Future of Missouri Businesses

Missouri has changed from a “no impressible motive whatsoever” position to a legal regime where discrimination must be the “dominating factor.” In other words, for Missouri employees to prevail now, it is not enough to show that the employer was discriminatory. If the employer might have had other reasons for dismissing or denying a promotion, the employee must show that discrimination was the most significant reason for loss of employment or promotion. Previously, the woman who sued for losing her promotion to comments that she “berates the staff” and that she “overcompensates for being a woman,” would have won because the second comment was proof of discrimination. Under the new Missouri law, it is not enough that the second comment exists. Instead, the second comment must be the #1 reason the woman lost her promotion.

Although this structure will undoubtedly force many employees out of the Missouri courthouse, the dominate motive structure is not an unusual one. Even states as liberal as California use the dominate motive instead of the mix motive framework to balance the fight between employers and employees. Instead, the most egregious aspect of SB 43 is that it caps damages. If a state forces a plaintiff to jump through hoops, like establishing dominate motive, it seems overly cruel to limit the damages that a plaintiff can obtain if the plaintiff wins. Employment lawsuits can be long and draining as they are. Missouri has doubled the time, expense, and difficulty for employees to collect a judgment, but it has reduced the amount of money that the employee gets even if the employee does everything correctly. It adds insult to injury if an employee can claim she was discriminated, but gets less for it.

BART Robbery: If CA Wants Change, then They Can Start By Trusting the Public

Since the middle of the year, the California Bay Area Rapid Transit system (BART) has been hit by a series of “flash mob” robberies. Between May and June, groups of 40-60 young people jumped fare gates and streamed onto trains, robbing and terrorizing passengers. The robberies usually took place in the Oakland stations and typically around 9:30pm. Cameras installed on the trains lead to the arrest of several of these individuals, but similar style robberies involving smaller groups have continued. Fortunately, one such robbery was foiled by Leonard Brown, a 62 year old off duty security officer.

BARTWhat was BART’s Response?

BART has responded to these robberies by installing additional cameras and placing more police officers around the targeted stations. Assistant General Manager Kerry Hamill has since come under fire for refusing to release the videos of these incidents to the media and the public at large, for fear that the media would display a “disproportionate elevation” of crimes that “unfairly affect and characterize riders of color.” Hamill has insisted that these words were only written in an internal memo that was not meant for public consumption. Nevertheless, public backlash has pushed BART to publicly comment that “Transparency trumps everything else. To not be willing to release information to the public because we think we know better what the public can handle is a mistake in my mind.”

Although Hamill’s concerns are grounded in good intentions, they will ultimately undermine not only BART, but the very racial communities she sought to protect. In a multiethnic country like the United States, the various racial groups will, at times, be jealous and resentful of each other. During times of racial tension, the government cannot be seen to favor one group or disfavor another, or it will only increase racial tension. That is the entire point of the Equal Protection Clause of the Constitution.

How Can We Move Past This?

In the past, certain minority groups, mostly African Americans, were completely disfavored by the state. However, we cannot write those wrongs by favoring, or even appearing to favor, African Americans now. If young people of color did indeed commit this violent crime, then not only should they be punished, but the public has a right to know who they are so that they can protect themselves or help the police in their search. Indeed, even “riders of color” would benefit from having the identities publically available; there is nothing in the reports to suggest that these robbers would not target people of their own racial group. And if the robbers are not African American, it would greatly benefit the African American community to have a video proving that.

If the videos are not released, many people will conclude that race relations – or even racial identity – is more important than protecting passengers, any passengers, regardless of skin color. This will fuel even more racial tension and will bring about the unfair characterization that Hamill feared. Indeed, the return of white supremacy and the rise of the “Alt-Right” have shown just how dangerous seemly innocent protection of otherwise criminal activity can become. Racism and disparate impact are real issues that minority groups face, but those minority groups can lobby on their own behalf without the assistance of government officials who are supposed to remain neutral.

If Hamill and others want to avoid wrongful “characterization of riders of color,” she should post examples of positive contributions that people of color have made rather than try and shield the bad apples from the consequences. Leonard Brown, the sixty-two year old security guard who stopped one of the robberies, is African-American himself. If Hamill wants to heal the racial divide and do her job, she can promote men like Brown who do the right thing. Every racial group has good people and bad people – the challenge should be to foster that understanding of duality instead of sweeping the bad people under the carpet.

Title VII Claim: Court Rules Intentional Segregation is Not Enough

The car repair chain AutoZone has been in legal trouble for transferring an African-American man from a store with primarily Latin-American clientele to one with primarily African-American clientele. To make things worse, the evidence showed that it was part of a concerted plan on the part of AutoZone to, over time, match the ethnicity of their store employees to the ethnicity of the majority of the clientele of a given store. The man who was to be transferred, one Kevin Stuckey, was fired after he refused the transfer.

If separating stores by race sounds like segregation to you, that’s because it’s basically the textbook definition of it. The Equal Employment Opportunity Commission (EEOC) certainly thought so, and brought a Title VII claim against AutoZone over their practice of intentional segregation. However, in a recent ruling, the EEOC was handed a shocker of a loss. Let’s take a look at the EEOC’s claim and why the court chose to rule the way they did.

Title VII Segregation Claims

The lawsuit brought by the EEOC made a claim under a less common source of liability for employers under Title VII– section 2000e(a)(2). Section 2000e(a)(2) makes it illegal for employers to “limit, segregate, or classify…employees or applicants … in any way that would deprive or tend to deprive [them] of employment opportunities or otherwise adversely affect [their] status as an employee [based on a protected characteristic such as gender or race].” This is a lower requirement than the usual Title VII claims alleging adverse employment action based on a protected characteristic. As we’ve discussed in the past, adverse employment action includes things such as firing, refusal to hire, demotions, refusing promotions or pay raises, and transfers to a generally less desirable position.  The EEOC’s claim, on the other hand, needed only to establish that AutoZone had acted in a way that tended to deprive Mr. Stuckey of an employment opportunity.

title viiThe first part of the EEOC’s claim was to simply prove that there had been segregation based on race. AutoZone obviously contested this, saying that Mr. Stuckey’s transfer was due to a combination of his inability to understand Spanish and failure to get along with the manager at his location.

The EEOC’s case, however, was quite strong. They produced evidence, and even testimony from the manager of Mr. Stuckey’s location, that AutoZone was engaged in intentional segregation based on majority clientele for a given store. AutoZone had an establish practice during the time of only hiring Latin-American employees for the location-regardless of their ability to speak Spanish.

The Court’s Ruling

Unfortunately for Mr. Stuckey and the EEOC, the court didn’t feel they needed to consider whether segregation took place–intentional or otherwise. They instead focused their ruling on whether or not Mr. Stuckey’s required transfer would have had a negative impact on his employment situation.

As mentioned before, segregation cases are fairly rare these days, so perhaps due to the lack of case law on the issue the court decided to examine the potential for negative impact on employment in a very similar manner to the higher standard of an adverse employment action. They focused on the fact that the transfer was a lateral one, no difference in duties, pay, or hours, in determining that Mr. Stuckey’s transfer would not tend to deprive him of an employment opportunity.

The EEOC argued that if the segregation element of Title VII does not cover intentional segregation, it’s a particular odd choice to have a separate rule for it. They further argued that the humiliation and embarrassment of being subjected to racial discrimination was by itself enough to give rise to a cause of action under Section 2000e(a)(2). They reasoned that it doesn’t make sense that the law allows intentional racial segregation of employees so long as the situations are equal–the very definition of separate but equal. Unfortunately, the court did not agree and ruled that without a situation that sufficiently damaged Mr. Stuckey to create a claim it did not need to bother considering whether AutoZone had actually segregated its employees.

What Does This Case Mean?

Unfortunately, this Seventh Circuit Court of Appeals ruling does mean what the EEOC feared in its arguments-employers seem to be able to legally intentionally segregate their employees so long as they don’t do so in a way that damages their economic situation. This seems almost too ridiculous to be the case. However, the next step of appeals from the Seventh Circuit Appeals Court would be up to the highest court in the land-the U.S. Supreme Court. The Supreme Court reviews only a very small portion of cases and, given its current conservative make-up, it is hard to predict the result of such an appeal. For now, this is the final word on this topic-regardless of if it seems to fly in the face of the law itself.

Travel Ban is Back… At Least Partially

The Trump Administration’s travel ban, and it’s many struggles in the courts, have been all over the news—on this blog and elsewhere. It’s been shot down, rewritten, shot down again, appealed and appealed again, and now the U.S. Supreme Court has finally had their say on Trump’s second crack at his immigration ban, temporarily barring Syrian refugees and entry to the U.S. from six Muslim-majority countries (Somalia, Sudan, Yemen, Iran, Syria, and Libya). Their preliminary opinion, final hearings are yet to come, was a unanimous ruling that the provisions of the second ban are constitutional and can be put into force—with some caveats.

Let’s take a look at the Supreme Court’s unsigned opinion from last week and see exactly what it does and why they say they ruled the way they did.

travel banThe Supreme Court’s recent order essentially removes the injunction from the executive order entirely, allowing the provisions of the ban to go into immediate effect. We’ve gone over the provisions of both the original order and its subsequent revisions in depth previously, so we go into that too much here. However, what we will have to parse out is the compromise the Supreme Court required to allow Trump’s Muslim ban to go into effect—an exception for people with a “credible claim of a bona fide relationship with a person or entity in the United States.”

According to the Supreme Court this includes situations where somebody is trying to enter the U.S. and can show that they have a close family member, they have a job waiting for them in the country, or they’ve been excepted to a university. These specific situations certainly create an exception to Trump’s order, allowing people in these situations to enter the U.S. regardless of the order. However, these situations are offered as “illustrative” of a bona fide relationship rather than an exhaustive list. This means that the door is open to figure out situations which create similar levels of bona fide relationship. Unfortunately, the Supreme Court was not forthcoming with analysis of how to determine when these situations exist outside their specific examples. To be honest, they weren’t even particularly clear about the outer bounds of their specific examples-as we’ll see when we talk about the implementation and legal backlash to this order.

So why did the Supreme Court give the travel ban order its ok? While the three most conservative Justices would have been happy to allow the order to go forward without caveat, the bona fide relationship compromise was largely responsible. The Court looked at the public interest requirement of an injunction and balanced the interest of the U.S. public in being allowed access to the U.S. against the national security interests claimed by the government. Whether or not you agree with them, the Supreme Court determined that the hardships caused to the U.S. public (citizens specifically) are substantially alleviated if those with bona fide relationships to those citizens are allowed entry into the country. With the caveat in place, the Supreme Court unanimously felt that the remaining hardship the order caused was outweighed by the governments historically strong interest in national security.

Implementing the Order

Now that the Supreme Court has given the order the go ahead, the government will have to start implementing that order again-an undertaking which last time led to unprecedented fallout due to poor execution and organization. This time, the Department of Homeland Security has promised implement the executive order “professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.”

In the last week they have released what they consider to be the outer boundaries of what constitutes a bona fide relationship. Familial relationships are limited to parents, spouses, fiancés, sons, daughters, son or daughter-in-laws, or siblings already in the U.S. This notably, and as we’ll see later contentiously, excludes grandparents, grandchildren, aunts and uncles.

When it comes to business, employment, or university relationships will need to be formally documented. Relationships of this sort will not be allowed if they are formed “for the purpose of evading the ban.” It’s not clear how these situations will be identified. Students, employees, lecturers, and journalists can get into the county if they have a “valid” invitation or employment contract. Again, there is little to define what makes a document valid.

Ultimately, even these clarifications need clarifications to avoid chaos. TSA agents are ultimately going to be deciding who has a bona fide relationship, a ridiculous requirement for anybody who isn’t an immigration attorney unless we can have very clear rules of what constitutes a bona fide relationship and how somebody can hope to prove that such a relationship exists.

As it is, the situation is too vague to continue. Many predicted lawsuits to quickly follow the Supreme Court’s ruling, and they already have been proven right.

Hawaii’s Emergency Motion and More to Come

Just last week, right after the Department of Homeland Security published their guidelines, Hawaii filed an emergency motion asking a federal court to rule that the guidelines violate the Supreme Court’s order by excluding relationships such as grandparents and uncles. They’re asking the court to say that the Trump administration cannot enforce the guidelines as written.

The Supreme Court’s order is incredibly vague and Hawaii’s is unlikely to be the last lawsuit stemming from the ruling. However, the truth is that the order is just the tip of the iceberg of what’s to come. The real hearings on this case won’t be in front of the Supreme Court until October. Until then, we’ll be left trying to parse the puzzle of the outer bounds of a bona fide relationship.

Dissent by Justice Gorsuch Ignores Legal Reality of Paternity Debate

Legal paternity has often conflicted with reality. Most state laws assume that the husband of a woman is the father of the child, regardless of whether that is biologically true. To be sure, this presumption is convenient – husbands don’t have to get tested whenever their wives become pregnant. However, this assumption has caused no shortage of legal headaches, as issues such as adultery, insemination, and the best interests of children often threaten to unravel the presumption. The debate over paternity has taken on new dimensions after the Supreme Court legalized same-sex marriage.

paternityIronically, Pavan vs. Smith doesn’t involve any fathers. Terrah and Marisa Pavan, a lesbian couple, married in 2011. Terrah gave birth to a child in Arkansas in 2015. Arkansas law requires that the biological mother, in this case, Terrah, be listed on the child’s birth certificate as the mother. The law also requires that the husband, if any, be listed as the father. Marisa requested that she be added to their new baby’s birth certificate as the child’s other mother because she was the legal spouse of Terrah. Arkansas’s Department of Health, the Department responsible for issuing birth certificates, refused, arguing that state law specifically called out “husbands” rather than “spouses” to be added to birth certificates. The Pavans sued, arguing that the law was discriminatory as it restricted a marital benefit to straight married couples only.

Arkansas argued that their law was legal because the statute was about the biological relationships of the children, not the marital status of the parents.  The Arkansas Supreme Court agreed and upheld the law. The Pavans appealed to the Supreme Court and the Court reversed the state Court in a 6-3 decision, with Justices Gorsuch, Alito, and Thomas dissenting. The majority ruled that the law was discriminatory as it withheld a marital benefit from same-sex couples – the legal presumption that the spouse of the biological mother is the child’s other parent. The Gorsuch minority dissented, agreeing with Arkansas that the birth certificate of the child was about the parental relationships of the child, not the marital status of the parents.

Where Does Justice Gorsuch Go Wrong?

The Gorsuch minority’s logic is fatally flawed. Although a birth certificate’s purpose is to declare the parental relationships of a child, Justice Gorsuch and the state of Arkansas ignore the law’s assumption that paternal relationships are based on marriage status. When marriage status is used as shorthand for a child’s parental relationships, then the birth certificate ceases to be strictly about biology. The biggest issue with Justice Gorsuch’s dissent is that he fails to even acknowledge this assumption. If a man who potentially has no blood relation to the child, but is allowed to be the child’s father because of his relationship with the child’s mother, there is no reason a woman cannot be allowed to be a child’s other parent based on her relationship with the mother.

Indeed, the legal fiction that is paternity is acknowledged by Arkansas’s statutes. According to Arkansas, if the biological mother, biological father, and the mother’s husband all agree that the father should be on the birth certificate instead of the husband, then the father’s name will be used instead. This exception shows that Arkansas itself recognizes that there may be cases where the husband is not the father. Of course, this is the exception rather than the rule, but this exception highlights that the birth certificate is about the law’s assumption about marital status, not just biology.

What’s Our Takeaway?

Of course, states like Arkansas maintains the presumption that husbands are legal fathers of their wives’ children because states want to maintain the institution of marriage. It would extremely disruptive to a married couple’s life if one spouse was raising children with a person outside the marriage. It is beneficial to children that their parents have a document that can prove their relationship to the child, but the reason children don’t have three or more parents is to preserve the ideal of dual parents raising a family.

There is no reason why either of those justifications can’t be applied to a lesbian marriage. It would disruptive to the Pavan’s marriage if Terrah was forced to be a single parent even though she is legally married to Marisa. Putting Marisa down as the other parent would allow her to take the baby to see the doctor or to fill out school forms without Terrah haven’t to carry all the burden of raising a child. The remedy is also easy: change all gender specific statutes to gender neutral statutes. The institution of marriage can be preserved, if judges like Gorsuch will preserve it.