Articles Posted in Civil Rights

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Lev Craig

This month, New York State and New York City made groundbreaking expansions to the sexual harassment provisions of several state and city statutes and regulations, including the New York State Human Rights Law (NYSHRL), New York City Human Rights Law (NYCHRL), general business law, and civil practice law and rules. Some of the most important changes involve extending legal protections against sexual harassment to previously unprotected workers, including independent contractors and other non-employees; prohibiting mandatory arbitration of sexual harassment claims and non-disclosure provisions in sexual harassment settlement agreements; and requiring employers to provide sexual harassment training to employees.

As of April 12, 2018, the NYSHRL now protects all non-employees in New York State against workplace sexual harassment. Most other state employment discrimination statutes cover only employees, leaving most independent contractors (including models, actors, and other entertainers who are typically represented by agents), consultants, and other non-employees with few legal protections against workplace discrimination. The new changes to the NYSHRL, however, extend sexual harassment protections under state law to any “contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.” Under the NYSHRL, an employer is liable for sexual harassment of a non-employee if the employer knew (or should have known) about the harassment but did not take immediate and appropriate corrective action.

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Lev Craig and Leah Kessler

This summer, we reported on the Second Circuit’s decision to review en banc its holding in Zarda v. Altitude Express, Inc., where the Second Circuit had affirmed the dismissal of the plaintiff’s sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) on the grounds that Title VII does not cover sexual orientation discrimination. On Monday, the Second Circuit broke with precedent and reversed that decision, finding that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.

While Title VII forbids discrimination in the workplace based on race, color, sex, religion, and national origin, the statute does not explicitly prohibit sexual orientation–based discrimination. This has historically left many employees vulnerable to discrimination because of their sexuality: No federal law explicitly forbids discrimination against LGBT people in the workplace, local laws differ considerably from state to state, and the U.S. Supreme Court has never addressed whether Title VII covers sexual orientation discrimination. While, under the Obama administration, the Equal Employment Opportunity Commission (EEOC)—the government agency that interprets and enforces Title VII—made clear that it views sexual orientation discrimination as a violation of Title VII, the EEOC’s interpretations don’t have legal force in federal court, and courts have typically dismissed Title VII sexual orientation claims in the past.

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Today, the Second Circuit Court of Appeals issued a landmark decision in Zarda v. Altitude Express, Inc., breaking with precedent and holding that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The court found that Title VII’s sex discrimination provision covers discrimination on the basis of sexual orientation, writing that it is “impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.” The decision, which makes the Second Circuit the second circuit court to arrive at such a ruling, means that LGBT New Yorkers are now protected by federal law against sexual orientation discrimination in the workplace.

We’ll post a blog exploring this decision in more detail later this week, and the Second Circuit’s opinion can be found here. If your employer has discriminated against you based on your sexual orientation, contact The Harman Firm, LLP.

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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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