Archive for the 'Discrimination' Category

“Clock Boy” Ahmed Mohamed’s Lawsuit Dismissed

Ahemd Mohamed’s, also known as “Clock Boy”, discrimination lawsuit has been dismissed from federal court. In September 2015, then 14 year old Mohamed assembled a clock using a circuit board and digital display and brought the clock to school. One of his teachers heard the device beeping and brought Mohamed to the principal’s office.

He was arrested and then suspended for three days. Mohamed claims he was interrogated for ninety minutes before the police would allow him to speak with his parents. Mohamed was charged with possession of a hoax bomb, but the charge was later dropped. He was suspended for three days by the school district.

Mohamed’s arrest sparked a social media firestorm amend allegations that he had been discriminated against because of his religion and ethnicity. Several weeks after his arrest, Mohamed was invited to the White House and spoke with President Obama. The police defended the arrest on the basis that the device could have been mistaken for a bomb if it had been left unattended.

clock boyMohamed’s father filed a lawsuit in federal court in August 2016 against the high school, its principal, and the city of Irving, Texas. The family demanded a written apology and $15 million in damages. Judge Sam Lindsay dismissed the case in 2016, but without prejudice so that Mohamed could refile with more facts. Two years later though, Judge Lindsay dismissed the case again, this time denying Mohamed the ability to refile.

Uphill Battle in Exigent Circumstances

Mohamed’s lawsuit was based on the theory that the Irving School District and City of Irving had discriminated against him based on religion and face, thereby violating the Equal Protection Clause of the 14th Amendment. Mohamed could plea based on the Constitution itself rather than rely on the Civil Rights Act because the School District and the City were controlled by the Constitution directly.

The problem with Mohamed’s complaint was that the case did not lend itself to discrimination on its face. If someone brings a device that looks like a bomb to a classroom, school officials and law enforcement are required to act. Police might have overreacted when they arrested Mohamed and held him for interrogation for over an hour, but the City and School District would have been negligent if they hadn’t acted at all.

Mohamed and his supporters could speculate that the police and the school would not have reacted the way they did if Mohamed was not Arabic or Muslim. However, lawsuits must be built on facts in the case, not mere speculation. Moreover, there’s no way to know how the school or police would react to an Asian or Caucasian student with a device that could reasonably look like a bomb unless someone actually does it.

A more interesting angle in this case is whether Mohamed’s criminal due process was violated. According to Mohamed, he was held for ninety minutes for questioning by police before he was allowed to speak with his parents. Since Mohamed was being held for questioning, the police needed to inform him of his Miranda rights.

Although some news agencies are reporting that he wasn’t allowed to speak with his parents while he was being interrogated, it’s important to know whether he asked for an attorney while he was being held. Sadly, his case was already dismissed with prejudice, so these questions probably won’t be answered.

New California Law Requires Posting of Transgender Rights in the Workplace and More

The new year has seen quite a package of laws supporting transgender employment rights in the work place come into force in California. This is crucially important because the protected status of gender identity under Title VII has gone from a cause championed by the Equal Employment Opportunity Commission (EEOC) for nearly a decade, growing as a right within the courts, to seeing support for the protection from the White House and its executive agencies slip away.

The courts, and the EEOC as well to a degree, still show a trend towards supporting these rights. However, their protection at a federal level has slipped in certainty.

This slip in federal protection means that it has fallen on the states to codify the sort of protection offered based on gender identity and make it known that that protection is available in their state.

In California, the last year or so has seen a flurry of activity on this front–most recently seeing a package of laws take effect on January 1st of this year. Let’s look at the new protections California has extended to its transgender citizens.

transgenderSB 396–Ensuring Transgender People Know Their Rights

The first of the two substantial changes to take effect in January was SB 396–requiring employers to post transgender rights explanations in the workplace. It also requires employers with 50 or more employees to include an understanding of gender identity, gender expression, and sexual orientation in their pre-existing mandatory sexual harassment prevention training.

The poster, titled “Transgender Rights in the Workplace,” covers several topics including defining terms under the law and explaining the rights associated with gender identity. The poster itself can be viewed here.

The law requires all employers to put the posters up in prominent positions.  The poster itself covers some important legal elements to understanding both your rights as a transgender person and the type of actions that will get a coworker and/or employer in hot water. First, it makes it clear that gender identity and gender expression are protected characteristics under California law.

This means that any discrimination in hiring or employment actions (as well as housing offerings) is a violation of the law. This basically includes any adverse employment action–refusing to hire, refusing to promote, firing, or even intentionally giving less favorable duties–is illegal if it is done based on stereotypes about gender, gender identity, etc.

This even includes situations where an employer perceives somebody as transgender or gender nonconforming and acts on this belief, even if the person if not in fact transgender. Transgender is defined under California law as a person whose gender identity differs from the sex assigned to them at birth. Gender expression, on the other hand, is defined as gender related appearance and behavior not stereotypically associated with a person’s sex assigned at birth.

The poster also makes clear what is and isn’t allowed on the part of an employer. Interviewers and hiring employers can ask about the usual references and employment history that you would expect in the hiring process.

However, leading questions seeking gender identity are out. The includes but is not limited to “marital status, spouse’s name, or relation of household members to one another. They are also not allowed to ask about a person’s body or whether they have already or intend to get reassignment or other surgery related to gender identity.

There some additional considerations under the law for dress codes, bathrooms, showers, and locker room facilities. Under California law, employers can only enforce dress codes in a non-discriminatory manner. This means dress codes in general are allowed but restrictions on dress and grooming must be applied in a manner that allows transgender or gender non-conforming employees to dress “in accordance with their gender identity and gender expression.”

Any employer must allow transgender or gender non-conforming people to use the restroom or locker room associated with their gender identity or expression. Where possible, an employer must provide a unisex single stall bathroom.

However, they cannot force and employee to use such a bathroom as opposed to the bathroom of their gender identity. It is illegal to require or push a transgender employee to use such a bathroom either by policy or through harassment. In addition to this, California law requires that any single-user bathrooms be identified as unisex unless it has a special exemption from elsewhere in the law.

AB 1556–Changing the Language of Law

In addition to requiring employers to post these new legal protections for transgender and gender non-conforming employees, California has also updated the language of the Fair Employment and Housing Act (the law which contains California’s Title VII equivalent) to use gender non-binary language.

AB 1556 replaced all instances of “her,” “she,” and other similar terms from gender discrimination and other elements of FEHA. This was done to make it clear that gender identity and gender non-conformance is indeed protected under the Act.

Transgender Rights are Largely in the Hands of the States

The current administration and its agencies have, to put it lightly, not made transgender rights their priority. A more critical view would be that they have actively rolled back the clock on gender identity rights built up over the last decade.

While the courts and the EEOC generally support the notion of gender identity as protected under sexual discrimination laws, it is generally in the hands of the states to pass any genuine law on the issue given the positions of the White House and the current Congress on the issue. This is especially true when comes to classifying gender identity as its own protected characteristic as opposed to bundling it in with sex discrimination.

It’s incredibly important that states take steps like those California has taken here. Hate crimes against transgender persons have rose in numbers in both 2016 and 2017–many of these incidents ending in fatal violence. Gender identity is something deserving of its own protected class. For now, state laws like these are the most likely route to such protection.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Pepe the Frog Meme Creator Suing Infowars Over Using His Character

When it comes to symbols of hate groups–the Nazi swastika and the like–it seems almost silly to bring a cartoon frog into the conversation. However, the cartoon Pepe the Frog has seen a sad development over the years into a common symbol of both White Nationalist movements and the “Alt-Right.” This change is much to the chagrin of Pepe’s creator, “Boy’s Club” cartoonist Matt Furie.

Furie has described Pepe as a character about “peace, togetherness, and fun.” However, the way Pepe has been used after being adopted by several online communities certainly hasn’t been in line with this. To put it in perspective, the Anti-Defamation League included it in its hate symbol database in 2016–although they did go out of their way to say that most of its uses were not hate speech.

The infamous interview where Richard Spencer–to be polite a controversial figure of the Alt-Right–was punched in the face had him explaining the meaning of his Pepe pin before a man clocked him and interrupted. Furie has repeatedly expressed frustration in the media over what had been done with his character, his publisher has also condemned these uses of the character–calling them illegal and repulsive. Furie’s frustrations even led him to publish a comic in 2017 in which he killed Pepe.

Recently, Furie has taken more substantial steps to take back his character–he’s started bringing lawsuits. Most recently, this has meant going after Alt-Right “entertainer” (he himself has made it clear that he isn’t actual news) Alex Jones and Infowars. However, this is only the most recent lawsuit he has brought. Let’s look at the actions Furie has taken and his chances in his case against Infowars.

Furie’s Earlier Lawsuit

Last year, Furie threatened a copyright infringement lawsuit against the self-published children’s book of an assistant principal by the name of Eric Hauser. This sounds bad, until you hear the content of fine Mr. Hauser’s book. Hauser published “The Adventures of Pepe and Pede,” a children’s book starring Pepe the Frog, his best friend a centipede, and quite a few bizarrely hyper-conservative themes as well as what is quite arguable outright racism and bigotry against Islam.

The lawsuit ended well before the end of 2017 and before it really even got started, ending in a favorable settlement for Furie before his lawyers even had time to file a complaint. This settlement required Hauser to withdraw “The Adventures of Pepe and Pede” from publication and donate the profits from the book–a whopping $1,521 and 54 cents–to the Council on American-Islam Relations. This is a win for Furie when it comes to reclaiming his character. However, it is small potatoes compared to what he can expect if he wins his lawsuit against Infowars.

infowarsThe Suit Against Infowars

Furie’s lawsuit against Infowars was filed just recently in a District Court in California. The central claim of the lawsuit accuses Alex Jones and Infowars of copyright infringement over the sale of a $29.95 “Make America Great Again” poster on their site which features Pepe the Frog alongside Alex Jones himself, Donald Trump, Milo Yiannopoulos, Ann Coulter, and other high-profile alt-right figures.

Neither Furie nor his publisher ever gave permission for the sale of this poster, they say that the unauthorized use infringes their copyright. Furie also makes it clear that he does not approve of the association of Pepe with the people listed above or their message.

For Infowars and Alex Jones part, they bemoan the lawsuit as frivolous and apparently yet another in a long string of attempts to victimize them. For the most part, Infowars argument–and the argument which has been discussed in the media–is that the poster is protected under the fair use rules in copyright law. They’ve still removed the poster from their store.

Infowars Lawsuit: What are Furie’s Chances?

Right off the bat, this lawsuit is not frivolous in any sense of the word. A valid copyright provides a number of exclusive rights to its owner.  These rights include–among other things–the exclusive ability to reproduce, distribute, prepare derivative works.

Derivative works are works based on a copyrighted work. Copyright protection applies to any original creative work fixed in a tangible medium–such as when a cartoon is drawn on a page or as a file on a computer. The protection attaches immediately on fixation; however, registration is required to bring lawsuits for anything more than a basic injunction and actual damages.

There are some other types of limitations on what can receive copyright protection. For instance, characters generally need physical and conceptual qualities that are especially distinctive and recognizable wherever it appears to be protected outside the context of the work they come from. However the image itself of Pepe is certainly protected and that image has been exactly reproduced in Infowars’ poster–this verbatim copying is clear infringement.

From there, the question is just whether Infowars has any clear defenses they can bring–such as fair use. Alex Jones himself has said the lawsuit is frivolous because his posters are transformative and thus fair use. Unfortunately for him, this is a woefully under informed opinion on how fair use works–transformativeness is only one element of many in reaching a fair use decision.

Fair use provides a defense to certain limited, transformative uses of a copyrighted work. The defense is extremely fact specific, so much to make it nearly impossible to declare something fair use without knowing the exact circumstances of the use.

In making the determination, courts balance four quite complicated factors:

  1. The purpose and character of the use (was it commercial, educational, transformative?);
  2. The nature of the work (e.g. fictional v. non-fictional);
  3. How much of the work was used and how important was the part used; and
  4. How the use effects the market for the copyrighted work.

It is true that transformativeness has particularly heavy weight in the fair use analysis. In fact, courts have ruled that the more transformative a work the less weight the other factors carry. However, it is still the first factor among many. Whether a work is considered transformative, a fact that makes the first factor of a fair use analysis weigh particularly heavily in favor of fair use, look to several things.

First, where the changes add new expression or meaning they are more likely to be transformative.  Second, where the changes add new value by creating new information, aesthetics, insights or understandings—most notably through parody or criticism—this also weighs in favor of the use being transformative.

There is a non-trivial argument that using Pepe in the context of the Alt-Right, especially given how clear Furie has been that Pepe does not represent those values, provides a transformative understanding of the characters meaning. This would weigh in favor of part of the first element of fair use–the purpose of the use. This being said, no one factor is determinative, and every other factor here weighs against Infowars on a fair use defense or is a non-factor.

A commercial use weighs heavily against fair use, although it isn’t enough to definitively bar something from fair use or vice versa, and this poster was clearly made for commercial sale. The entire work, the cartoon image of Pepe, was taken wholesale with no modifications–another factor weighing against fair use.

The final element, how it effects the market for the work, is an interesting discussion. It is unlikely Furie would target the Alt-Right market, however his image becoming a symbol of this market–or a hate symbol for that matter–drastically undercuts the market for Pepe.

This means that the use by Infowars will need to be quite transformative to succeed in a fair use defense. However, it’s hard to see the use reaching that level. The context of the use is transformative to some extent in terms of interpretation.

The actual image is not transformative at all. There is no change, the extent of the transformativeness will to rely on verbatim copying the image into this new context. This seems like a weak argument because every other element weighs against them.

The Case is Far from Over

Fair use is an extremely complex bit of law, so much so that it is impossible to guarantee an outcome in these types of cases. This is true of law in general to some extent, there are no slam dunk cases. However, fair use is so fact specific that two different courts with the same case can easily and reasonably come to completely opposite decisions.

The facts look bad for Infowars here, but there’s a lot of case left to litigate. Furie will certainly be happy to start taking these steps to take back his character–especially considering his lawyers have taken his case on pro bono. For now, we’ll just have to keep an eye on this case to see whether Alex Jones’ claims of a “frivolous lawsuit” are just fake news.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Justice Department Reviewing Oakland Mayor’s Tipoff on Immigration Raids

Mayor Schaaf warned the community of a U.S. Immigration and Customs Enforcement (ICE) raid twenty-four hours before ICE arrived. Oakland’s mayor issued tweets, emails, and a press release on February 24 warning about impending ICE raids. Local businesses received emails that included a message: “Important Alert! Credible information ICE Raids in Oakland Sunday 2/25 and Monday 2/26. This information comes directly from the Mayor.”

ICE arrested 232 suspected undocumented immigrants that weekend. ICE Deputy Director Homan claims that eight hundred (800) were able to elude them because of the mayor’s warning. ICE spokesman, James Schwab, resigned on March 13 in protest over that claim.

immigrationThe White House and ICE accuse Mayor Schaaf of obstructing justice and endangering the lives of federal agents as a result. Homan argues that “what she did is no better than a gang lookout yelling ‘police’ when a police cruiser comes in the neighborhood, except she did it to a whole community.” The case is under review by the Justice Department.

Mayor Schaaf asserts that her actions were legal. Schaaf says she did not obtain her information from official government channels and she did not reveal specific details about the federal agency’s operations. Schaaf claims she intended to protect law-abiding immigrant families who would have been separated by ICE.

The episode in Oakland is only the latest dispute between the White House and the immigration agency and sanctuary policies in California. The White House believes that such sanctuary policies impede federal law enforcement and give refugee to illegal immigrants. California officials see sanctuary laws as a means of preserving state resources for prosecution of real crimes and to encourage good relations between immigrant communities and state police.

What If ICE Comes to My Home or Business?

Like all government agencies, ICE must obtain a judicial warrant in order to enter private property without the owner’s consent. Without the owner’s consent or a warrant, the search would be unconstitutional and any evidence obtained could be suppressed in court. One of the disputes between California and Attorney General Sessions is whether the 4th Amendment is satisfied if agents only have an executive branch subpoena or if a warrant signed by a federal judge is required. The former is potentially unconstitutional and defense attorneys should be aware if ICE agents executing a search with only a subpoena.

California’s sanctuary law makes it illegal for employers to consent to an ICE search of employment records without a subpoena or court warrant.  This ban does not apply to I-9s and “other documents for which a Notice of Inspection has been provided to the employer.” If ICE is permitted to review an employee’s records, the employer is required to notify the employee of the search within 72 hours of handing over the records to the agency. This provision is being challenged by the federal government in court and is the most likely part of the state’s sanctuary law to be voided by the Supreme Court. Still, employers in California must comply until the law has been overturned.

California Coffee Shop Refuses to Serve Police Officers for Safety Reasons

Hasta Muerte, an Oakland coffee shop, refuses to serve police officers. The cafe opened last November after a crowd-funded campaign. On February 16, a sergeant was turned away from the shop. The officer left without incident or coffee. The Oakland Police Officers Association has asked the shop to discuss its policy, but the business refused to comment.

Instead, Hasta Muerte posted a message online on February 22: “We have a policy of asking police to leave for the physical and emotional safety of our customers and ourselves.” The post also asks community members to support the cafe’s safety “especially in an area faced by drug sales and abuse, homelessness, and toxic masculinity as we see here on this block.” The shop is owned by a five-member worker cooperative.

police officersRefusing to Serve Cops: Is this Legal Discrimination?

The Civil Rights Act only protects specific traits – religion, gender, sex, national origin, and race. The Americans with Disabilities Act further protects those who are mentally or physically disabled. There are no protections for police officers. California law also prohibits discrimination based on military and veteran status, but no laws exist to prevent discrimination towards police. Police officers, at least in California, have no civil rights recourse if a business chooses not to serve them.

Laws prohibiting discrimination towards police officers don’t exist because they seem unnecessary. It seems unwise to bite the hands that might respond to an armed robbery. Of course, refusing to serve an officer does not mean that the business can escape civil or criminal liability. If the police see a crime occurring or if someone reports that a crime is occurring inside the shop, the business cannot bar the police from investigating.

On the other hand, this type of policy could also legally backfire on Hasta Muerte. The café plays with fire when it advises customers to “Talk to your neighbors, not the police.” Although community members have no legal obligation to report a crime, they cannot prevent others from calling the police. If a crime occurs and Hasta Muerte prevents witnesses from cooperating with the police, Hasta Muerte could face a criminal indictment for obstruction of justice and/or accessory after the fact.

What Should We Take Away from This?

However, this shouldn’t be a reason for police not to protect the café or anyone else who refuses to serve officers. Police will always have a duty to protect and serve, even if the protected are hostile towards the officers. The police department should be the bigger men in these situations. The state should not require that shops like Hasta Muerte serve officers. Instead, the police department should work to win back the trust of the community. Respect is earned. If the local community doesn’t respect its officers, the responsibility is on the officers to earn it.