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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.

Trump Faces a Record Amount of Lawsuits for a President

In a mere two-week period, Trump faces a slew of lawsuits that already amount to 10 times the average of the three presidents who preceded him.  Over 50 lawsuits have been filed and, at the rate he’s going, it doesn’t look like it will slow down any time soon.  Plaintiffs from 17 different states include religious groups, state attorneys general, doctors, professors, students, refugees seeking help, and Iraqis who have worked for the U.S. military.  While most lawsuits are in reference to Trump’s immigration ban arguing civil rights violations, the President is also facing a financial conflict of interest suit and a lawsuit regarding federal funding.

Trump Lawsuits

Travel & Refugee Ban

Civil rights cases starting flying out of the wood works once Trump signed his executive order restricting travel.  The immigration ban not only restricts access into the United States for those from select black-listed countries, but it halts entrance for refugees seeking political asylum.  Although a federal judge has temporarily blocked the executive order from taking effect, Trump has appealed the lawsuit.  Here’s a closer look at what the executive order will do if Trump prevails his appeal:

  • Suspend the entire U.S. refugee admissions system for at least 120 days.
  • Suspend the Syrian refugee program indefinitely.
  • Ban entry from 7 majority-Muslim countries, including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days. This includes dual-nationals that hold passports from other countries as well.
  • Prioritize refugee claims on the basis of religion, with a strong implication that non-Muslim religions would get preference.
  • Lower the total number of refugees to be accepted in 2017 from any country.

The lawsuits allege violations of the 1st, 5th and 14th Amendments, citing religious inequality, due process and equal protection violations, denials of asylum, as well as discriminatory visa processing practices.  Here’s a closer look at the expanding list of who’s suing Trump based on this executive order:

  • Washington state has brought suit on a national level and claims the ban violates both the 1st Amendment and the Equal Protection Clause of the Constitution. The state of Minnesota joined in on the lawsuit, as well as 16 other states who have joined as friends of the court to argue against the ban. At least 127 tech companies have also filed briefs with the U.S. Court of Appeals for the Ninth Circuit in opposition to the ban.
  • The ACLU brought multiple lawsuits by different plaintiffs arguing the ban discriminates against Muslims. Among the plaintiffs are two Iranian national University of Massachusetts-Dartmouth associate professors were detained while returning from an engineering conference and an Iraqi soldier (with a valid visa) was detained in New York while trying to join his family.
  • The Council on American Islamic Relations also brought suit alleging the ban discriminates against Muslims and is unconstitutional on 1st Amendment grounds because it disfavors groups based on their religious faith.

Conflicts of Interest

We’ve been hearing about the numerous ways Trump’s business dealings present conflict of interest issues since his election.  The Citizens for Responsibility and Ethics in Washington (CREW) brought a lawsuit against Trump alleging he violated the Emoluments Clause of the Constitution, which basically says those holding office can’t profit from their power in office.

CREW’s lawsuit alleges because of the payments Trump receives from foreign organizations as through his many businesses, he’s profiting from his presidency.  The argument rests on the notion that these profits limit his ability as President to make unbiased decisions for the benefit of the United States over the betterment of himself.  Although, there’s a good argument CREW doesn’t have standing to win their case, it doesn’t negate the legitimate conflicts of interest.

Withholding Federal Funding

Cracking down on sanctuary cities is a campaign threat Trump followed through on.  In addition to his immigration ban, Trump issued an executive order that would cut federal funding from sanctuary cities that refuse to cooperate with federal immigration officials.  San Francisco, a sanctuary city, has taken a stance and brought a lawsuit arguing the order violates the 10th Amendment.  While the federal government can put conditions on the money they give out, the conditions cannot be coercive, which gives San Francisco a strong argument.

What Happens When a President is Sued?

Qualified immunity can be tricky.  On a general level, public officials are protected from lawsuits alleging they violated a plaintiff’s rights.  Exceptions come into play when there’s an allegation that the official violated a clearly established statutory or constitutional right.  If cases were brought against a president for actions not related to their official capacity, the case would most likely be postponed until their term is over.

There are numerous lawsuits pending against Trump that were filed before his inauguration and don’t relate to his presidency.  The fraud lawsuit regarding Trump University was settled, but most of the other cases will resume once Trump’s time in office is over.   All of the cases filed within the past couple of weeks relate to Trump’s actions as President and pose constitutional violations, so they’ll be able to move forward through the judicial process.

Can a Catholic Hospital Refuse Medical Treatment For Religious Reasons?

What happens when a hospital refuses vital medical treatment due to the hospital’s religious beliefs?

In the United States, Catholic hospitals have come under scrutiny when reports emerged of women denied treatment due to their “ethical and religious directive.” In almost every case, it was a woman who was either pregnant and/or wished to prevent pregnancy.

How can hospitals, especially Catholic hospitals, deny necessary treatment? Regardless of religious affiliation, hospitals are there to treat and serve their community. How can the hospital be allowed to operate if they refuse necessary, life-saving treatment for those in need?

What Does the “Ethical and Religious Directive” Say?

In the United States, Catholic hospitals must follow the “ethical and religious directive” set by the Church. The Directive instructs that hospitals should treat all patients, including (but not limited to): the poor, those without insurance, single parents, the elderly, children, and “the unborn.”

The Directive states that a pregnant woman can undergo treatment or care, even at the risk of the fetus’s life, so long as their illness is “proportionately serious” in comparison to the loss of the fetus. In fact, the Directive uses the term “proportionately serious” when describing the health of a pregnant woman and an unborn fetus.

For these hospitals, the life of the unborn fetus is as important as the life of the pregnant woman in distress. In essence, the fetus is as much a patient as the mother. In fact, the directive also forbids the hospitals from sterilizing women, so they also treat the hypothetical “unborn.”

The doctors at the Catholic hospitals refused to perform an abortion, since the fetus’ heart was beating. Even after the women were bleeding heavily, in excruciating pain, developing an infection, and were told that their is no way for their child to survive.

Can a Hospital Refuse to Give Necessary Treatment?

No, a hospital cannot refuse to give a patient necessary treatment. However, the question is whether the treatment is necessary.

An abortion is not always necessary if the pregnancy would become a miscarriage. However, it is a common medical practice in the United States to perform a medically necessary abortion when a patient begins to show signs of infection and/or severe pain.

Many of the women in the report were experiencing severe pain and showing signs of infection. Instead, the Catholic hospitals turned away each patient and told them to wait in pain, discomfort, and fear until the fetus no longer had a heartbeat. In fact, to fight the pain and infection, they were given some aspirin and sent home.

It is easy to say that these women should have gone to a different hospital or facility; someplace that does not follow the Ethical and Religious Directive. But Catholic hospitals are growing in number, and in some states they account for 40% of available hospital beds. This means that for many of these women, finding a place that is not a Catholic hospital may mean hours of travel to receive treatment.

So Why is This Still Going On?

The state and federal government have not addressed the gap in treatment options that are due to religious directives. The government wants to encourage the creation and running of non-government run hospitals, but they cannot tell these hospitals how to operate.

Currently, hospitals may be required to have emergency services and not turn away impoverished patients. But women’s health and abortion issues are still heavily debated, in the government and around the dinner table. If the government cannot take a stand on abortion, then it would be hard to impose any requirement on hospitals.

But what can we do about women who are falling through the cracks of the system? These women are not seeking an abortion to end a healthy and viable fetus. They are seeking an abortion to help end the agony of a miscarriage after being told that their child will not survive.

Given the current landscape of women’s health, it seems like this issue will not be resolved any time soon. But for the health and safety of 50.8% of the United States population, we can only hope that it will stop being a question of politics and instead a question of public health and well-being.

ITT Tech’s Sudden Shutdown Brings New Legal Woes

ITT Technical Institute became a household name for many people who remember seeing the commercials on daytime tv during soap operas and daytime talk shows. However, ITT Tech is now becoming known for a business move that is as shocking as anything on the television programs that it once advertised. That move was to abruptly close its educational centers without much, if any, warning.

The for-profit educational juggernaut is now finding itself in legal trouble after suddenly shutting the company doors. Three employees have filed lawsuits against ITT Educational Services, Inc., the company in charge of the ITT Tech educational centers, over the fact that the company failed to provide an adequate warning to its employees before closing.

Under the Worker Adjustment and Retraining Notification (WARN) Act, companies with 100 or more employees are required to provide 60 days notice to their employees in the event of a plant closing that results in a mass layoff. A mass layoff is defined as a layoff of 50 or more employees. ITT

When the details of the WARN Act are applied to the facts of the ITT Tech situation, it does appear that ITT Educational Services, Inc. did owe its laid-off employees a warning. The mass closings of the ITT Tech educational facilities occurring all at once can equivocate to a major plant closing despite occurring at different locations instead of a singular location.

Also, the aggregate number of employees working at the various shuttered educational facilities was around 4100 employees, which means that the shutting down of the ITT Tech facilities did lead to a mass layoff if viewed as a singular action.

ITT’s Defense

However, there are two arguments that ITT Educational Services, Inc. may be able to use to successfully defend itself. First, the company could argue that the closures cannot be treated as a singular closure that triggered a mass layoff because the facilities are located all across the country with many facilities employing less than 50 employees.

Closing several smaller offices rather than one large office has a different impact on a community than if a single location employing several people in that community shuts down without warning. The court can choose to look at each facility closure as a single instance instead of choosing to aggregate all of the closures and employee numbers into a single event. If the court does choose to look at the different closures as unique events, then the number of employees lost at each educational facility may not be enough for the employment loss to count as a mass layoff.

In the event that the court does choose to look at the closures as a single event, ITT Educational Services, Inc. may still be free to argue that it should be exempt  because the closures were a result of an unforeseeable business circumstance. Under the WARN Act, a company is not required to provide a 60-day notice to its employees if an unforeseeable business circumstance is what caused the plant closing.

In the case of an unforeseeable business circumstance, the company only needs to provide as much warning as is reasonably possible. ITT Educational Services, Inc. could potentially argue that the imposition of sanctions by the federal government was an unforeseeable circumstance that made it impossible to continue operations. On its website, ITT Educational Services, Inc. claims that it had no intention of closing the ITT Tech educational services until the sanctions prohibiting it from accepting federal loans were imposed.

Danger Was Foreseeable

However, the company had been evaluated and monitored by the federal government with the threat of sanctions if certain changes were not implemented by a certain date. Also, Corinthian Colleges, a for-profit education company similar to ITT Educational Services, Inc., shut down operations just over a year ago after going through the same evaluation process and being given the same sanctions as ITT Educational Services, Inc. Thus, it could be argued that ITT Educational Services, Inc. should have been able to foresee that they may be put into a position of having to shut down operations shortly after the deadline provided by the government, and should have provided its employees with a warning of a probable closure.

Even with the availability of two possible defenses, it does appear that ITT Educational Services, Inc. may have owed its former employees a 60-day warning for the educational facility closures. If the court does find that the employees were owed a warning, then ITT Educational Services, Inc. will owe its laid-off employees wages and benefits for the amount of time in which they were owed a warning, which would be 60 days in this case. ITT Educational Services, Inc. may owe even more money beyond the wages and benefits if the court determines that the company should have also provided notice  to local governments of the intention to close its educational facilities.

Mass layoff and plant closures have a seriously negative economic impact on local communities when they happen. If a large employer such as ITT Educational Services, Inc. fails to provide an adequate warning about a mass layoff, then the economic impact cannot be mitigated by the former employees finding new employment to replace their former employment with little to no gap between periods of employment.

Thus, it is important to enforce laws such as the WARN Act. If you have recently been laid off suddenly without warning, you may be entitled to back wages under the WARN Act or another federal law.  To find out if you are entitled to such compensation, contact an employment lawyer today.