Articles Posted in Civil Rights

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Leah Kessler and Lev Craig

On the third Monday of January each year, we observe Martin Luther King Jr. Day, an occasion to remember, reflect on, and do our best to promote the vision for which Martin Luther King Jr. fought and died. Yet, as a nation, our remembrance of Dr. King’s work often ignores (or, perhaps, those with the power to write history, decided to elide) some of the core goals and values of his activism—among them, his commitment to anti-poverty work, labor organizing, and workers’ rights, issues he viewed as inextricable from his civil rights activism.

While U.S. states and employers now observe Martin Luther King Jr. Day, this was not accomplished easily or without resistance. While President Ronald Reagan officially recognized Martin Luther King Jr. Day as a U.S. holiday in 1983, he initially opposed the holiday (citing “cost concerns”), despite a petition to Congress with more than six million signatures in favor of the holiday. Though President Reagan ultimately passed Martin Luther King Jr. Day into law, it was not actually observed until three years later, and many states continue to resist doing so; in fact, the holiday was not officially observed in all 50 states until 2000. Even today, several states—including Alabama, Mississippi, and Virginia—still choose to “combine” Martin Luther King Jr. Day with observances of holidays recognizing Confederate generals Robert E. Lee and Stonewall Jackson.

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Lev Craig

Earlier this year, we reported on the Eleventh Circuit’s decision in Evans v. Georgia Regional Hospital affirming the dismissal of a former security guard’s claims that her employer had discriminated against her because she is a lesbian and did not conform to gender stereotypes. This Monday, December 11, 2017, the U.S. Supreme Court declined to review the Eleventh Circuit’s ruling in Evans, leaving unanswered the question of whether Title VII covers sexual orientation discrimination.

Plaintiff Jameka Evans, who is a lesbian, worked at an Atlanta regional hospital as a security officer. She was open about her sexual orientation with her coworkers and dressed in a masculine manner, wearing the men’s security guard uniform, men’s shoes, and a short haircut. According to Evans’s complaint, the hospital discriminated against her because of her sexual orientation and nonconformity with gender stereotypes by denying her equal pay, harassing her, physically assaulting her, and targeting her for termination, then retaliated against her after she complained about the discriminatory treatment.

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Lev Craig

On September 29, 2017, the U.S. District Court for the Northern District of Illinois dismissed all claims in Demkovich v. St. Andrew the Apostle Parish, finding that the First Amendment’s “ministerial exception” precluded a gay music director at a Catholic church from bringing wrongful termination claims after he was fired just days after marrying his male partner.

In 2012, St. Andrew Parish and the Archdiocese of Chicago hired Sandor Demkovich as music director, choir director, and organist, where he was responsible for selecting and performing music played during mass at St. Andrew. Reverend Jacek Dada, the pastor at St. Andrew, knew that Demkovich was gay and engaged to a man. But shortly before Demkovich married his now-husband in September 2014, Demkovich’s coworkers told him that Reverend Dada intended to ask him to resign after the wedding and had already started telling St. Andrew employees that Demkovich had been fired.

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Owen H. Laird and Walker G. Harman, Jr.

On Wednesday, President Trump and his administration took two major actions against LGBT rights: First, President Trump tweeted that transgender people would no longer be allowed to serve in the U.S. military; then, the Department of Justice (DoJ) filed a brief in an ongoing Second Circuit case, arguing that Title VII of the Civil Rights Act of 1964 (Title VII)—a major federal anti-discrimination statute—does not prohibit discrimination based on sexual orientation. These two actions clearly demonstrate Trump’s position on LGBT rights: He does not support them, and his actions are disturbing and intolerant. As Trump forces the LGBT community—and all of us—to take giant steps backward, we all need to bear arms (so to speak) to protect the rights of all those marginalized within the LGBT community.

Last year, President Obama instituted a new policy allowing transgender people to serve in the military. On Wednesday, President Trump, via Twitter, announced that transgender people would no longer be able to serve, claiming that the armed forces could not afford the “tremendous medical costs and disruption” supposedly caused by transgender people serving in the military. Trump provided no empirical support for his offensive statement. The backlash against Trump’s statement was swift, with Democrats and LGBT advocates swiftly decrying the decision. There are estimated to be anywhere between 5,000 and 15,000 transgender people currently serving in the U.S. military, and Trump’s announcement puts their careers at risk.

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Owen H. Laird, Esq.

Most Americans know that February is Black History Month. Newspapers run a few additional civil rights stories; politicians will invoke Dr. Martin Luther King, Jr.; schools implement some additional lessons; and companies run commercials extolling tolerance and diversity.  Whether all this accomplishes anything with respect to the real obstacles that African-Americans routinely face because of their race remains to be seen.

Fewer Americans know that March is designated as “Women’s History Month.” If we did, we could expect Women’s History Month to consist of many of the same gestures as Black History Month—with the result being commercialization and political opportunism, with little lasting change. This is not to say that the efforts to educate people about the struggles faced by African-Americans, women, and other minority groups are pointless. A basic understanding and appreciation of the longstanding oppression of a majority of the people in the United States is necessary to grapple with the ongoing disparate treatment that these groups continue to face. However, this education is often delivered out of context, without paying adequate attention to ongoing marginalization or to finding a plan of action to address it.

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By Lev Craig

On April 13, we wrote about North Carolina’s Public Facilities Privacy & Security Act, more commonly known as “HB 2,” in a blog titled “North Carolina Passes a Controversial Law That Overturns City Anti–LGBT Discrimination Laws.” HB 2 establishes that public schools and public agencies are required to segregate restrooms by biological sex, defined by the statute as the sex listed on an individual’s birth certificate. Consequently, HB 2 effectively denies many transgender people the right to use the bathroom consistent with their gender identity, as a transgender person’s gender presentation is likely to differ from the sex indicated by their birth certificate. The National Transgender Discrimination Survey, the most comprehensive and large-scale survey of transgender Americans to date, found that only 24% of respondents had been able to update their birth certificate to reflect their gender identity.

On March 23, HB 2 was passed in a special session of the North Carolina General Assembly (the first called by the state’s legislature in 35 years), where the bill was introduced, debated, and voted upon over the course of just 12 hours. On May 9, the United States filed suit against the state of North Carolina, Governor Pat McCrory, the North Carolina Department of Public Safety, and the University of North Carolina and its Board of Governors, alleging that the bathroom regulation provision of HB 2 violates Title VII, Title IX, and the Violence Against Women Reauthorization Act of 2013.

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Owen H. Laird, Esq.

Anyone living in the United States at the moment is undoubtedly aware that the 2016 election season is in full swing. This week, the news has been dominated by the Republican National Convention in Cleveland. On Tuesday night, the theme of the Convention was – ostensibly – “Make America Work Again.” Despite the stated theme, the speakers rarely touched on economic policies or issues, instead preferring to resort to the same attacks against Democratic nominee Hillary Clinton ­– private email server, Benghazi, etc. – that were made the night before.

On the few occasions where the Convention speakers did touch on economic issues, they primarily bemoaned the state of the “middle class worker” in America. According to the speakers, the problem facing middle class American workers is that “regulation” is choking the economy and preventing American business owners from doing whatever they need to in order to create jobs.

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Yarelyn Mena

On May 31, 2016, in Janean E. Chambers v. Sylvia Mathews Burwell, the Court of Appeals for the District of Columbia Circuit held that an employee may suffer an adverse employment action where an employer refuses to promote the employee to a non-existent position. Janean Chambers—a longtime, legally blind, Black employee of the U.S. Department of Health and Human Services (“HHS”)—filed a complaint alleging race and disability discrimination in violation of the Civil Rights Act of 1964, Title VII, and Rehabilitation Act against the HHS after HHS denied her several requests for promotions.

In 2006, HHS promoted Ms. Chambers to management analyst. In 2007, she applied for a another promotion; however, her supervisor, Michael Curtis, informed her that her position was capped at the current pay level and that she could apply for other positions within HHS of a higher pay level or request a “desk audit” to demonstrate that her skills warranted a higher pay level. Ms. Chambers instead decided to continue working in her position and sought an “informal” promotion by requesting the creation of a higher pay level vacancy with the same responsibilities as her current position, which HHS commonly granted. Mr. Curtis supported Ms. Chamber’s efforts but advised her that he did not have the authority to create a new position.

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Owen H. Laird, Esq.

For New Yorkers, both the Fair Labor Standards Act (FLSA) and New York Labor Law provide employees with rights to a minimum wage and, in many cases, overtime pay. However, many workers in New York still do not receive the pay to which they are entitled; for instance, employers may under-report employees’ hours, improperly withhold wages or tips, or simply pay a wage lower than the State minimum.

However, many employees choose to let these violations go because they are “minimal.” An employer might underpay an employee for by a half hour for each pay period, a loss that might only amount to a few dollars a month. The employee could hesitate to pursue those lost wages, afraid of upsetting things at work or doubtful that they can find a lawyer to pursue a smaller case. Despite these potential concerns, employees who believe they are being illegally underpaid should not be afraid.

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Yarelyn Mena and Edgar M. Rivera, Esq.

On April 27, 2016, the Second Circuit decided Legg et al. v. Ulster County et al., in which it reversed the Northern District of New York’s decision at summary judgment dismissing a pregnancy discrimination claim under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.  Legg arose after Ann Marie Legg, a corrections officer at the Ulster County Jail (“Ulster Jail”), requested an accommodation under Ulster Jail’s “light duty” policy.  Ulster Jail’s light duty policy allows employees suffering from medical conditions resulting from a line-of-duty injury to be reassigned to deskwork, i.e., to positions that do not include inmate contact.  Under the policy, pregnant women are not eligible for light duty; they must either continue to work “full duty,” use accrued sick or vacation time, or take leave under the Family and Medical Leave Act.

In 2008, Ms. Legg became pregnant.  Her doctor told her that her pregnancy was “high risk” and recommended that she “shouldn’t have direct contact with inmates.”  In accordance with her doctors’ recommendation, she requested that Ulster Jail allow her to work light duty and submitted a doctors’ note in support.  Although at first Ms. Legg received a denial letter in July 2008 stating that “[e]mployees are afforded light duty assignments at the Sheriff’s discretion for work-related injuries/illnesses only,” she was later informed that Ulster Jail would grant her request once she submitted a revised doctors’ note indicating that she was in fact able to work without restriction.  Ms. Legg complied and submitted the letter. For a time, Ulster Jail assigned Ms. Legg to light work; however, around August 2008, they forced her to work with inmates again.  In November 2008, Ms. Legg, now seven months pregnant, was caught in the middle of a physical fight between two inmates during which one inmate bumped into her as he ran past her.  After this incident, Ms. Legg did not return to work until after she gave birth.  Upon returning to work, Ms. Legg brought a lawsuit against Ulster Jail alleging pregnancy discrimination for denying her request for light duty.  Ulster Jail moved for summary judgment, arguing that light duty was only available for employees injured in line of duty and that all employees regardless of their gender or pregnancy status, were treated the same under that policy. The district court granted Ulster Jails’s motion and dismissed the case.