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By Edgar M. Rivera

On May 16, 2019, in Equal Employment Opportunity Commission v. Danny’s Restaurant, LLC, a jury before the U.S. District Court for the Southern District of Mississippi awarded $3.3 million to five African-American strippers in a race-discrimination case against Danny’s Cabaret (“Danny’s), a strip club.

The Equal Employment Opportunity Commission (EEOC) sued Danny’s, alleging that the Jackson, Mississippi strip club limited when Black women could work, while White strippers had more flexible schedules, and fined only Black women $25 if they did not show up for their shift.  Essentially, Black dancers were only allowed to work during their scheduled shifts, and if a Black dancer did not show up for her scheduled shift, she was fined.  White dancers were not required to schedule their work shifts in advance, but were free simply to appear for shifts at their discretion; nor were they threatened with fines for not showing up on any certain days.  This system was later replaced with a quota system: the number of Black dancers who could dance on a given night depended on how many White dancers were present.

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By Edgar M. Rivera, Esq.

On May 7, 2019, three anonymous Somali Muslim women, Ms. A, Ms. B, and Ms. C, filed charges with the Equal Employment Opportunity Commission (EEOC) in Minneapolis, Minnesota against, Inc. (“Amazon”), alleging violations of Title VII of the Civil Rights Act of 1961.  These women claim Amazon’s Shakopee, Minnesota fulfillment center failed to accommodate Muslim employees’ religious needs, failed to promote Somali workers, and retaliated against workers who protested discrimination.  Minnesota is home to some 30,000 immigrants from Somalia who started settling in the area in large numbers in the 1990s.  Somali immigrants make up a sizable portion of the 3,000 workers at the Amazon fulfillment center in Shakopee, Minnesota.

The women allege that Amazon denied them adequate space and time to practice their religion.  They claim that employees feared taking time away to pray, since that lost time would reduce a worker’s “rate,” or how many items a worker packs per hour.   The warehouse’s current packing rate is 240 boxes an hour, but it has gone as high as 400.  Employees who regularly fall short of the rate—simply because they attempted to observe their religious obligations to pray—faced repercussions such as write-ups.  Several employees stopped taking breaks to perform ablutions before prayer, broke their Ramadan fast, and stopped going to the bathroom.

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By Crismelly Caso

People with disabilities sometimes need a “service animal” to assist them with life tasks.  For example, people with impaired vision might rely on guide dogs for navigation, and those who suffer from seizures may rely on dogs for seizure warnings.  There are also “emotional support animals” to assist those with emotional or mental disorders, such as post-traumatic stress disorder (PTSD).

Under Titles II and III of the Americans with Disability Act (ADA), which apply to government buildings and public accommodations, respectively a “service animal” is defined as a dog (or a miniature horse) that is trained to perform tasks or do work for the benefit of a person with a disability.  This definition, however, does not include “companion animals” (pets), or “emotional support animals.”  Although these animals often have therapeutic benefits, they are not trained to perform specific tasks for their handler.  Under the ADA, owners of public accommodations are only required to permit service animals, not companion or emotional support animals.

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By Edgar M. Rivera

On April 9, 2019, the New York City Council (the “Council”) passed a bill that would prohibit New York City employers from requiring a prospective employee to submit to testing for the presence of any tetrahydrocannabinols (“THC”), the active ingredient in marijuana, as a condition of employment.  Exceptions to the prohibition are provided for safety and security sensitive jobs—such as police officers, peace officers, positions with law enforcement functions, construction workers, drivers, and care givers—and positions tied to a federal or state contract or grant.

Medical marijuana in New York has been legal since 2014, when New York passed the Compassionate Care Act, which allows certified patients suffering from certain serious health conditions to obtain marijuana from their physician for medical use.  There were more than 60,000 certified patients in New York as of June 30, 2018.

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By Bobbie Mae James

As of April 22, 2019, the Supreme Court added three cases to the docket for its next term beginning in October 2019: a transgender funeral home director who won her case for unlawful termination based on gender discrimination, a gay sky-diving instructor  who successfully challenge his dismissal based on sexual-orientation claims, and a social worker who was unable to prove his unlawful termination was a result of his sexual orientation.  These cases could be considered landmark civil rights cases if the court rules that sexual orientation and gender identity is encompassed within sex-based discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).

Title VII forbids discrimination on the basis of sex.  The term “sex” however, is not defined in the act.  The question before the Supreme Court is whether the term “sex” is broad enough to encompass both sexual orientation and gender identity.  In the traditional sense, sex is defined as the biological differences (both genetic and genitalia) between males and females.  Gender is difficult to define but in general, it refers to the male and female roles/identities determined by society and an individual’s concept.  The term sex and gender are used interchangeably despite their differences, and sexual orientation has added to the complexity of sex; it refers to ones sexual attraction to the sexes and other genders.

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By Leah Kessler and Walker G. Harman, Jr.

On February 2, 2019, Chicago police officers assigned to Marshall High School repeatedly used a stun gun on 16-year old Dnigma Howard.  When Howard tried to defend herself by grabbing the gun, a police officer hit her with his closed fist. As a result of this abuse, Howard suffered physical and emotional damages.

This serious and sad case raises the question as to why the police were stationed at the school in the first place—an issue Chicago Public Schools (CPS), like many other city school systems, has been grappling with for some time.  According to the National Center for Education Statistics, there are approximately 50,000 officers and an 39,000 security guards working in the nation’s 84,000 public schools. “But having officers present in classrooms and cafeterias has created its own set of concerns — about the criminalization of typical teenage misbehavior, about the discriminatory enforcement of vague laws, and about the excessive use of physical force against children in school spaces where they should be able to feel safe,” said Emma Brown from the Washington Post.

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By Walker G. Harman, Jr.

Contrary to popular belief, the Me Too movement is not so new.  Beginning nearly 15 years ago, it was established to “help survivors of sexual violence, particularly Black women and girls, and other young women of color from low wealth communities, find pathways to healing.”  The original founders had a vision to address both the “dearth in resources” for survivors of sexual  violence” (emphasis added) and to “build a community” of advocates, politicians, lawyers, social workers and others to develop a grassroots approach to addressing and redressing sexual violence at its core.

Now, over a decade later, with many celebrities spear-heading the movement, thousands upon thousands of woman (and even some men) have come forward to say Me Too.  So, what does Me Too actually mean?  It seems via popular sentiment that the utterance of  Me Too signifies that the speaker is also a survivor or a victim of sexual violence.  However, sexual violence is generally associated with illegal conduct (both civil and criminal), such as rape, molestation, offensive touching, sexual harassment, and other vile and abhorrent conduct.  That is, the underlying conduct with a claim of sexual violence is so intrusive and offensive, that it gave rise to criminal and/or civil liability.  Keeping with the movement’s original intent and to this day, the official organizers of the Me Too movement describe the purpose as “helping those who need it to find entry points for individual healing and galvanizing a broad base of survivors to disrupt the systems that allow for the global proliferation of sexual violence.”

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Edgar M. Rivera

On April 1, 2019, the United States Department of Labor (“DOL”) announced a proposed rule to narrow the definition of “joint employer” under the Fair Labor Standards Act (“FLSA”).

The FLSA allows joint employer situations where an employer and a joint employer are jointly responsible for the employee’s wages.  This issue frequently arises when a business obtains temporary workers through a staffing agency—creating a question of which entity qualifies as the temporary worker’s employer or whether both companies may be deemed as joint employers.  If a joint employer relationship is found to be present, both employers must meet labor requirements and, therefore, both may be held liable for alleged labor practice violations.

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Title VIII of the Civils Rights Act of 1964 (“Title VII”) prohibits all employers (with 15 or more  employees)  from discriminating against employees on the basis on sex, race, color, national origin and religion.  Claims brought under Title VII are enforced by the Equal Employment Opportunity Commission (“EEOC”) and privately by attorneys. One type of discrimination, however remains unactionable under Title VII: discrimination based on hair style.

Discrimination based on one’s hair style disproportionately affects people of color, specifically, black people who have afro-textured hair that has not been chemically straightened.  Historically, black hairstyles have been stereotyped as “unprofessional” in the workplace.  Moreover, employers have terminated employees based on an employee’s hairstyle, as was done in Bryan v. AEG Management Brooklyn, LLC, in which an African American woman was terminated for wearing her hair in a natural, untreated style.

In Bryan v. AEG, Tiffany Bryan, who was employed by the Defendant, AEG Management Brooklyn, LLC (“AEG”), preferred to wear her natural hair in the style of an afro.  Her employer requested that she wear headbands, reasoning that her hair style looked as if she “stuck her finger in a socket” or “was electrocuted.”  Bryan agreed to wear a headband. Yet, AEG still deemed her hair as inadequate and inappropriate for the job and requested that she wear a ponytail.  Bryan explained that the tension from ponytails gave her serious headaches and refused to oblige her employer’s request.  In response, AEG terminated Bryan.

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By Leah Kessler

On March 13, 2019, 19 current and former United Parcel Service, Inc. (“UPS”) employees brought a suit against UPS and five local managers and supervisors alleging race discrimination.  Covered by CNN, Slate, The Washington Post, The Hill, and other major media outlets due to both the severity of the allegations and UPS’s negligence in addressing its employees complaints of racial discrimination, this case has received national attention.

Dewayne Spears, et al. v. United Parcel Service, Inc., et al., Plaintiffs present a series of horrific racist acts going back to 2013—discriminatory behavior that UPS allegedly allowed to go on unchecked for decades.  In 2013, according to the suit, a Black UPS employee “received a copy of an electronic image depicting a gallows and hangman’s noose with a Black man’s effigy hanging from the noose, an image of a gorilla, and a target on the effigy.”  In 2016, one white employee directed the following texts to a Black co-worker as part of a group text: “If you feel down and out, the noose is loose,” “Can we buy another noose with the winnings” (in reference to possible lottery winnings), and “Like Clint Eastwood said, ‘Hang ‘em High.”  After the Black employee on the thread who had reported the comments filed a grievance, UPS denied the formal complaint had been made and, at no point, were any of the culpable workers punished for making the racially threatening comments.

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