Archive for the 'Employment' Category

Transgender Laws in the United States

U.S. History has been marked by continual efforts to expand the inclusiveness of civil rights. While we have made strides in gender equality and gay rights, we have a long ways to go. Presently, transgender rights are at the forefront, with celebrities like Caitlyn Jenner and Laverne Cox who have brought transgender issues to the collective consciousness like never before.

Even though we are beginning to recognize the transgender community, we are far from recognizing broad legal rights for those who identify as transgender.

The United States is behind three European countries that not only recognize transgender issues as the next civil rights movement, but also provide comprehensive legal rights for those who identify as transgender. Denmark, Malta, and now Ireland allow transgender people over the age of 18 to change their legal gender without medical or state intervention. Changing one’s legal gender is a huge progress for the majority of European countries, many of whom require transgender individuals to undergo surgery and sterilization, or be diagnosed with a mental disorder, and get divorced if married, to have their desired gender recognized legally.

Who 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.  LGBT Flag

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.

How Does the United States’ Transgender Laws Compare?

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.

While there are laws which protect transgender people from discrimination, there is no current law similar to Denmark, Malta and Ireland’s that allow transgender people to change their legal identification without intervention. Although one can easily change his or her name in any state, it is much more difficult to change the name on one’s birth certificate, which requires a court order. Changing the gender marker on one’s birth certificate is even more difficult. In the majority of states, it requires proof of surgical treatment to change one’s sex. Some states, including California, Oregon, New York, and Washington, allow one to change the gender marker on their birth certificate with proof of appropriate clinical treatment, even if no surgical treatment is sought.

Even if one changes their gender marker on their birth certificate, it does not mean that one’s sex is legally changed. There are some cases involving marriages in the United States before same-sex marriage was legalized where the court ignored the corrected birth certificate and decided the marriage was invalid. Now that same-sex marriage is legal, the gender marker on one’s birth certificate for these cases is immaterial.

The United States does not allow transgender people the same opportunity to change their legal identity without medical intervention. Ireland’s bill that afforded the transgender community this legal right was passed months after Ireland legalized same-sex marriage by popular vote. It stands to reason that because same-sex marriage is now legal in the United States, we may soon be following suit to expand transgender rights.

How Is Sexual Orientation Becoming A Protected Class?

Before the Civil Rights Act (CRA) became law, individuals faced discrimination based on race, sex, religion, and national origin. At first, the word “sex” was added to focus on discrimination against women.

Yet over the years, sex discrimination extended to gender discrimination. However, with the recent progression in LGBT rights, some courts interpret the protection to cover discrimination based on sexual orientation. Now, the courts are beginning to place LGBT individuals in a protected class.

But what if the CRA is not amended to prohibit sexual orientation discrimination? What basis can the courts use to extend protection? Can the courts extend protections in a state that does not enact protections for sexual orientation?

Why Is It Important To Be Considered A Protected Class and How Do You Become Protected?

A protected class is a group of individuals that have stronger legal protection against discrimination or retaliation. The right was hard earned over many years with violence and discourse.   Supreme Court

In the beginning, race and color were the only protected classes. Over time, women, the elderly, individuals with disabilities, and a slew of other classes gained protected. But, they were not all protected through the CRA. Groups such veterans, pregnant individuals, and disability became protected through other types of legislation without amending the CRA.

So, do you really need to amend the CRA?

There Is No Need For An Explicit Law. But To Begin, the First Step Was Basis Extend the Protection for Transgender Individuals.

The Equal Employment Opportunity Commission (EEOC) established Title VII of the CRA. It prohibits discrimination because of the individual’s sex. To discriminate because someone identifies as a gender other than assigned at birth, is to discriminate because of their sex. Discrimination against a transgender is gender identity discrimination and so is prohibited under Title VII.

The EEOC focuses on the precise wording of Title VII. The law “prohibits employers from discriminating against employees on the basis of sex….”. The conditional words are what the EEOC and the courts focus on for the basis of extending protection.

The courts applied the same reasoning used in sex discrimination cases involving heterosexual women. The courts found a demand for a female employee to “dress more femininely” to be “sex stereotyping.” The act of stereotyping because of sex violates Title VII.

Extending protection to transgender individuals was a first step in protecting sexual orientation as a class. Soon the courts applied “because of” and “sex stereotyping” to their reasoning.

Applying “Sex Stereotype” And “Because Of” Reasoning to Sexual Orientation Discrimination.

Due to the evolving and growing understanding of sex and gender, the courts apply the concept of “non-conforming gender behavior.” Describing situations like a heterosexual female employee who dresses in a masculine way to a male employee who exclusively dates other men.

Our understanding of sex and gender are evolving. Now, some courts apply the concept of “non-conforming gender behavior.” Like situations like a heterosexual female employee who dresses in a masculine way.  A male employee who exclusively dates other men.

If the employee faced discrimination because of the sex stereotype that women should wear feminine clothing and men should only date women, then they were discriminated because of their sex. If the female employee was male, then she would not have faced discrimination. The same logic applies to the male employee.

The majority of cases deciding that sexual orientation discrimination violates Title VII came in recent years. It was a long awaited step towards equality for individuals who have lived as second class citizens based upon who they love or what they feel.

In the End, the Courts Applied the Same Logic To Sexual Orientation Discrimination.

In 2015, the Supreme Court held that same-sex marriage is a constitutional right. The legal system filled with cases of individuals seeking protection from sexual orientation discrimination.

Since the Supreme Court found legal and statutory basis for same-sex marriage, the lower courts could find a basis for sexual orientation discrimination in Title VII. However, there is no federal statutory law that explicitly states there is a protected right for same-sex marriage. Due to the slow legislative process in Congress, it will may take years, or decades, before it becomes law.

Many argue that the CRA must be amended to make sexual orientation a protected class. But many accepted protected classes only reached that level after social acceptance. In the end, it is only a matter of time before sexual orientation becomes a protected class.

Use of Religion in Deciding Secular Issues: Risk of Prejudice and Inequity

The role of religion in conflict situations can be powerful. The use of religion in alternative dispute resolutions may produce sensible resolutions for the disputes of the parties who share the same religious faith without having to go to a court. However, the norms of what is right and what is wrong in a particular religion set different rules from what is legal and illegal under the civil law. This leaves minority groups vulnerable and subjects similar cases to vastly different sets of arbitrary rules.

For instance, in family law, the use of religious doctrines to resolve issues such as divorce and marriage is problematic because the religious doctrines are often prejudiced against women. Furthermore, the proceeding of religious arbitration is quite different from legal procedure, foregoing many steps of investigation and discovery that are instrumental for fact finding. As a result, those individuals who agreed to religious arbitration do not get a day in court and have to accept the decision by the value-laid religious principles of which they may or may not believe in.

Judicial Preference to Uphold Religious Arbitration

One of the biggest controversies is that religious arbitration may shield religious organizations from liability. When religious arbitration is used to decide a secular issue, there is a concern that religious arbitration often results in outcomes favorable to the religious entity and unfair to the individuals who signed the religious arbitration contract.

With such skepticism religious arbitration brings to the table, you may believe that courts would intervene. Unfortunately, courts rarely do. The First Amendment’s Free Exercise and Establishment Clause preclude courts from meddling with religious exercises of faith and from favoring one religion over another. Consequently, courts have either upheld religious arbitration or refused to review these cases under the First Amendment.  I Do Solemnly Swear

This judicial preference to uphold religious arbitration sometimes leaves truth untold. Ms. Spivey, a mother, wanted to find out what occurred or led her gay son to death when her son was found dead while he was in the custody of Teen Challenge, a Christian based rehabilitation program. One day, she got a call from Teen Challenge that her son was intoxicated and was being taken to a hospital. When Ms. Spivey called the hospital, she was told that he was never admitted there. He was missing and later found dead.

Ms. Spivey attempted to find out what happened to her son. She tried to bring a wrongful death suit, but could not because she signed an agreement that contained a religious arbitration clause when she enrolled him in the program. Under the clause, any disputes had to go to Christian conciliation, the religious arbitration. The mother appealed, challenging that a court should decide the matter, not the religious arbitration. She argued that her First Amendment right also included the right not to exercise religion. While it is a correct statement and interpretation of the Free Exercise clause, the court found that there was no constitutional conflict.

In any case, she had signed the agreement to arbitrate and was suing on behalf of her dead son. Accordingly, the appeals court did not review the case and parties proceeded to religious arbitration. The facts show that many questions were unanswered. Why was her son intoxicated and why was he not admitted to the hospital? Did the pressure from Teen Challenge worsen his drug abuse? Why did he end up in a city with no money or cellphone?

Law of Contracts – Limitations and Safeguards

While the First Amendment prevents courts from reviewing religious arbitration awards, courts can review the awards based on contract law. Courts can review religious arbitration agreements just like any other contract.

Proponents of religious arbitration argue that you cannot challenge the arbitration agreement because you voluntarily enter into the agreement to arbitrate. Admittedly, in contracts that contain religious arbitration clauses, courts almost always order the arbitration, finding that there is a valid contract to arbitrate. Furthermore, in regard to whether the arbitration award should stand, courts almost always affirm the arbitration award.

Courts may vacate the award where the award is a product of fraud, corruption, or serious misconduct by an arbitrator. Courts seem to focus on the procedural aspect of arbitration. Judges often will not opine whether arbitration awards are substantively fair.

Admittedly, freedom of contract is a long-standing principle that deserves due respect. Contracts cannot void agreements just because the parties have unequal bargaining power. As consumers, we more and more encounter an agreement containing an arbitration clause that is take-it or leave-it situation without any room for negotiation. This one-sided contract has become a fact of modern life.

However, with expansion of practice of arbitration in consumer contracts, courts sometimes invalidate arbitration agreements if the contract is unconscionable. The contract is unconscionable if it was so extremely unfair to shock the consciousness. Perhaps, courts could use the same doctrine to void the religious arbitration clause when the contract was entered into under extremely unfair circumstances. Perhaps, for public policy grounds, courts should gradually review more cases decided by religious arbitration to identify particular secular issues that are unfit for decision making based on religious principles.

Should Student Loans Be Dischargeable In Bankruptcy?

For many college students, three things are certain about their future: death, taxes, and years of student loan repayment. Student loan repayment is a must whether the student graduates or not. A percentage of those students will default on their student loans because of low income. If an individual couldn’t make student loan payments, should those payments be dismissed because of hardship? The Seventh Circuit of Appeals recently decided on if a graduate should have his student loans dismissed.

Tetzlaff vs. Educational Credit Management Corporation

Petitioner Mark Warren Tetzlaff is seeking to have his student loan debt discharged. Tetzlaff, 56, lives at home with his mother. He owes about $260,000 in student loan debt guaranteed by Educational Credit Management Corporation. In 2012, he filed for Chapter 7 bankruptcy. In his petition, he requested the bankruptcy courts discharge his loans because repaying the money would cause undue hardship for him.  Debt

Both the district court and the Seventh Circuit denied his request. In the original denial, the bankruptcy court found Tetzlaff’s financial situation could improve. It cited facts like:

  • His MBA
  • Being a good writer
  • His intelligence
  • Temporary family issues

In addition, the Seventh Circuit questioned whether he’d actually made a good faith effort to repay his student loans.

U.S. Bankruptcy Courts Do Allow Hardship Discharge in Chapters 7 & 13

Tetzlaff requested the undue hardship exception afford some debtors in bankruptcy proceeding. The exception does wipe out student loan debt if the debtor can show it would be too hard to make the repayment. There’s a test to determine whether the debtor does have this option. The test varies between bankruptcy courts, but many use either:

  • The Brunner Test
  • The Totality of the Circumstances Test

The Brunner Test

With Brunner, a debtor’s income is scrutinized. The poverty factor compares the debtor’s current expenses and income to the poverty level. The debtor can’t maintain a minimal standard of himself and dependents if forced to repay student loans. The second factor is persistence. The court looks at the debtor’s current finances and whether it will continue throughout the repayment period. Good faith is the last part of the test. The courts determine whether the debtor has made a good faith effort to repay student loans.

The Totality Test

Some bankruptcy courts use the totality of the circumstances test. This test looks at all the important factors in a debtor’s bankruptcy case to determine if there’s undue hardship or not. The test is more holistic, than the Brunner Test.

According to a US News article published in 2014, about 40 percent of debtors who include their student loans in bankruptcy petitions receive a favorable outcome. The petitions that received a favorable outcome had some or all of their student loan debt discharged through bankruptcy. Although the article reveals some students were able to discharge their loans, it also means that the majority of the debtors seeking student loan discharged weren’t successful.

Student loan debt is dischargeable in bankruptcy, but only under the narrowest of circumstances. This creates a problem for those denied bankruptcy relief for their student loans.

Bankruptcy Provides a Fresh Start

According to bankruptcy laws, chapter 7 or 13 provide a debtor with an opportunity to financially rebuild his or her life after a financial hardship. Whether it’s eliminating unsecured debts or saving a home, a debtor can have a fresh start if the petition is granted. For debtors with non-dischargeable student loan debt, the promise of a fresh start is stale.

The problem is that there is a 60% chance that student loan debt will survive the bankruptcy. This means whatever financial fresh start he or she had in bankruptcy is gone. A debtor faces tough consequences when defaulting on a student loan such as:

  • Loans turned over to a collection agency
  • Paying additional court costs and attorney fees
  • Wage garnishment
  • Sued for entire student loan amount
  • Federal and state income tax refunds taken to repay student loans
  • Student loan default listed on credit history for up to seven years
  • Ineligible for deferments
  • Ineligible for professional license renewals
  • Ineligible for financial aid
  • Ineligible to enlist in the U.S. Armed Forces

Potential for Fraud?

Opponents of bankruptcy reform argue that if we make it easier for a debtor to discharge student loans, bankruptcy fraud will rise. Bankruptcy fraud is to delay, defraud, or hinder the bankruptcy court and/ or creditor. Bankruptcy fraud can range from hiding assets to making false statements under oath.

There’s a chance debtors will try to defraud the bankruptcy courts or creditors to have their student loan debts discharged. However, bankruptcy fraud isn’t new. It does happen and debtors are caught. I’m sure if the law is changed, debtors will be more scrutinized before any loan debts are discharged.

Change the Bankruptcy Law to Help More Debtors

It is a moral and binding obligation to repay student loan debt no matter how much money one makes. The government and private lenders provide the loans based on getting money back in the future. It’s the only reason why a young broke college students can get thousands of dollars in cash to attend school. Lenders bank on the young broke college students graduating and making a six-figure income and repaying their six-figure debt.

However, just because a debtor may no longer have to pay loans, doesn’t mean the debtor has no obligations. In many cases, the debtor is already behind in payments and has little to no money to make student loan payments. Whether or not a debtor can afford to repay his student loan shouldn’t be based on the bankruptcy courts’ interpretation of a bright future.

We should change bankruptcy laws to allow people close to defaulting on their student loans the ability to discharge part or all of their student loans in bankruptcy.

California Turns Down Bill That Would Make It Easier To Sue Employers

Thanks to Governor Jerry Brown’s veto of Assembly Bill 465 (A.B. 465), employers in California are permitted to place arbitration agreements in employment contracts without further restrictions. A.B. 465 provided that arbitration agreements, and other waivers of legal rights must be “knowing and voluntary and in writing, and expressly not made as a condition of employment.” The Bill would have also banned mandatory arbitration. Mandatory arbitration requires employees to go to arbitration in the event of an employment dispute instead of taking the matter to court. In short, California employers may continue to enforce arbitration agreements set forth in employment contracts.

What is Arbitration?

Arbitration is an alternative dispute resolution (ADR) method. ARD is a means of resolving conflicts outside of the court system. The two most common forms of ADR are arbitration and mediation.

  • Mediation: Mediation is a process where disputing parties reach a mutual agreement with the help of a third-party mediator. Parties in mediation usually retain significant control over the process. In mediation, the parties in dispute must reach their own agreement; the mediator cannot decide the outcome. The agreement reached by the parties is usually non-binding. Thus, parties may pursue litigation after the conclusion of mediation.
  • Arbitration: Arbitration is a process where a neutral arbitrator (usually a lawyer or a retired judge) make a decision following a hearing. Usually, the arbitrator’s decision is binding and enforceable, unless the parties agree that it is non-binding. Because the decision reached in arbitration is binding, the arbitrating parties cannot litigate the final decision in court, however, awards can be appealed on a very limited basis. If the appeal contesting an arbitration award is successful the arbitration award is voided and the dispute may be litigated in court.

Arbitration is usually initiated when a court orders the parties to arbitrate or there is an applicable arbitration clause related to the dispute. For example, employers may place arbitration clauses in an employment contract that sends employment disputes must be submitted to arbitration.

Arbitration v. Litigation?

Arbitration is frequently a preferred alternative to trial when resolving disputes. Primarily, parties prefer arbitration over litigation because arbitration is a faster process and frequently less expensive than resolving an issue in court. Arbitration is also not part of the public record, unlike court. Thus, if parties want to maintain a degree of confidentiality, arbitration is more ideal.  Arbitration

Since arbitration is usually a more cost effective and confidential method of handling disputes,  employers usually prefer arbitration. If California limits employers ability to arbitration employment law claims, employers could locate elsewhere, which could create a loss of jobs in the state.

Critics of arbitration and supporters of A.B. 465 have largely argued that allowing mandatory arbitration agreements in employment contracts are unfair to employees. A.B. 465, as discussed above, would have limited employers’ ability to place arbitration agreements in their employment contracts.  It appears coercive to mandate that employees with otherwise viable employment law claims must submit their cases to arbitration. Employment attorneys note that frequently employees with viable cases receive far less in arbitration awards than they would have received in a traditional jury trial. Thus, the veto would appear to be a loss for employees in California.

Despite the apparent disadvantage the veto might have for employees, existing law in California already protects employees from seemingly unfair arbitration agreements. Under standard contract law, if an arbitration agreement is unconscionable or overly favorable to the employer, the arbitration agreement will be invalid.  Moreover, California law also requires employers to pay for arbitration should a dispute arise. Thus, employees with disputes have a cost-effective method of resolving employment disputes.

What Does the Veto Mean for California Employers?

Governor Brown’s veto means that employers in California may continue to place mandatory arbitration agreements in employment contracts. Nevertheless, employers must still adhere to California laws regulating arbitration that are already in place.



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