Thursday, November 6, 2014

EEOC Charge Data on "Sex - Gender Identity / Transgender" Just Out

The EEOC has come out with a chart showing charge data on "gender identity/transgender" cases. (Definition of terms can be found here.)

The chart shows that, in 2013, 160 such claims were brought. In 2014, 140 such claims were brought through the third quarter, for a total of 300. 

How many of these did the EEOC find had reasonable cause to believe that prohibited discrimination had occurred?  

In 2013, 6%, or 7 of the 115 cases resolved that year were found to have reasonable cause. That is about in line with the general run of EEOC charges, which usually clocks in at between 3% to 6%.  In 2014, however, only 1.5%, or 1 of the 66 cases resolved that year were found to have reasonable cause. However, this low reasonable cause rate is likely an artifact of the 9 months of data available for 2014, instead of the 12 months listed for 2013, and the related fact that 74 cases are still pending. If there are two more reasonable cause findings by December 31 of this year, and the resolution of cases carries at the same rate, that will bring the percentage up to around 3.5%. They also might be counting dates in an unexpected way, because I myself have three cases in which a reasonable cause finding was found during the first three quarters of 2014.  

The EEOC also lists two litigations brought by it against employers in federal court involving gender identity, one of which is a case I brought to the EEOC on behalf of my client, Brandi Branson.  

There is also a link to amicus briefs filed by the Commission on LGBT issues, one of which is the Commission's amicus brief in another case I brought to federal court, in the Northern District of Georgia, Chavez v. Credit Nation Auto Sales, LLC, on behalf of my client Jennifer Chavez. While the EEOC amicus brief, and an accompanying amicus brief filed by Lambda Legal, TLDEF, TLC, NCTE, GLAD, Freedom to Work and PFLAG National, were instrumental in finding that Ms. Chavez had a right to file her charge of discrimination based on gender identity, the District Court dismissed the case on summary judgment on another ground. The case is now on appeal to the United States Court of Appeals for the 11th Circuit.    

Do employees have recording rights in the workplace under the NLRA?

Law360 published an article last week with the title "Employees Should Not Have Recording Rights Under NLRA" by L. Brent Garrett, a partner with Fisher & Phillips LLP. It raises an interesting question: Does the National Labor Relations Act give you the right to make audio or video recordings in your workplace? I would caution employees regarding making such recordings, as there may be state law that criminalizes such recordings without consent from all parties. In addition, some employers have rules prohibiting such recordings, and doing so may be cause for discipline or termination.

That being said, the National Labor Relations Act gives workers the right to be free from employer punishment for discussing "wages, hours and working conditions." In addition, the National Labor Relations Board (NLRB) has interpreted this to mean that there is a broad right under federal labor law to discuss these on social media. But does this apply to recordings used or intended to be used for discussion with other employees, including on social media?

The NLRB hasn't yet addressed this issue, but clearly it is ripe for review. Thus, if an employee is disciplined or fired for making a recording on the premises, it seems that it might be a good idea to make a complaint to the NLRB.

The article points out that confidentiality concerns, as in a hospital setting, appear to trump recording rights. However, it also cited a number of administrative decisions, some allowing such recordings, and one permitting a rule against recording. Thus, if this becomes an issue, one should keep in mind the possibility of an NLRB complaint.

Saturday, November 1, 2014

Filing Pro Se in Federal Court: Good Idea or Not Good Idea?

This week brings new of a new court opinion involving a transgender employment discrimination plaintiff. However, instead of getting her day in court, the Court gave her the cold shoulder.

Generally, it is not the best idea for a non-lawyer to file their own complaint in federal court. While the United States Equal Employment Opportunity Commission has investigators and lawyers on staff to help you get your facts in the right order to fulfill all the many legal rules, federal courts do not. (I recommend using a lawyer even for filing with the EEOC, if you can find one.) Of course, it is often impossible to find lawyers who will take on a case alleging employment discrimination based on gender identity or expression on a contingency. ("Contingency" means attorney fees are taken from any monetary recovery, rather than being paid upfront, and there are no fees if there is no recovery.) Many lawyers don't understand these cases.

Courts and court clerks do not provide advice on how to file and will not meet with you. They require complaints in very specific legal formats, and they must contain all sorts of information, such as why the court has jurisdiction. While courts generally permit pro se plaintiffs -- nonlawyers who file their own cases -- more latitude, that only goes so far. If you are going to file in court on your own, you should think honestly about your ability to research the court's requirements on the internet, your ability to read fairly complicated legal materials, and your ability to write and follow directions. Many courts have pro se manuals designed to help people file their own complaints. These are extremely useful, but they are somewhat complicated and lengthy, so keep that in mind.  It's reminiscent of trying to do your own surgery -- there are a lot of similar-looking parts in there (e.g., but-for causation and cause in fact), sometimes it's hard to understand the textbook (you try reading this), and it's painful (no citation needed to prove that).

If you fail to follow a rule, the Court does not advise you. Instead, it just dismisses your claim, as happened in the case of Taschner v. Freeman Decorating last week in federal court in Florida. Ms. Taschner wrote her own complaint without help from an attorney. She alleged that her employer discriminated against her because of her transgender identity. She alleges being treated as an outcast, and complains of anti-gay slogans in the work environment. She alleges being dismissed because of a false positive on a drug test, which occurred because of her hormone replacement therapy. She alleges that she passed a subsequent test after she stopped taking the hormone remedy. Nonetheless, she was terminated. This sounds like treatment that violates the Federal Civil Rights Act, and should entitle her to relief.  Instead, the Magistrate Judge recommended immediate dismissal of her claim because of Federal Rule of Civil Procedure 10, which requires numbered paragraphs.

Here is what the Court said in dismissing the complaint:

"[P]laintiff has not presented her claim(s) in such a way that the Court can evaluate whether they meet this standard. While the Complaint contains some allegations that might be intended to support a claim for discrimination, Plaintiff does not identify any particular claim but lumps all of her allegations together in one lengthy paragraph. As such, the Complaint is in violation of Federal Rule 10(b), which requires a party to state its claims in 'numbered paragraphs, each limited as far as practicable to a single set of circumstances,' and to plead each claim in a separate count. Fed. R. Civ. P. 10(b). Without knowing the exact claim Plaintiff is attempting to assert, the Court cannot determine whether she has adequately pled sufficient plausible allegations to support it. Additionally, the papers include various letters to unidentified persons and their purpose as attachments to the Complaint is unclear. Moreover, the Complaint does not specify what relief is sought. In sum, as pled, the Court cannot ascertain whether Plaintiff has pled sufficient factual allegations concerning the elements of any identified theory."

The Court simply did not know what to make of the Complaint, so rather than try to make sense of it, it gets dismissed. The ruling will have to be confirmed by the Judge handling the case, as the Magistrate Judge is a sort of judicial helper who works for the real "Article III" Judge. Also, the recommendation suggests that the Plaintiff be allowed to resubmit, so she can still bring her claim, but she will have to get it up to snuff under the Federal Rules of Civil Procedure.

Taschner v. Freeman Decorating Services, Case No. 6:14-cv-1622-Orl-22DAB (M.D. Fla., October 8, 2014)

Friday, October 10, 2014

Upcoming webcast on transgender employment discrimination claims

Upcoming webcast on transgender employment discrimination claims 


 I am doing a continuing legal education webcast for Lawline.com on transgender employment discrimination claims on Monday, October 13, 2014. The video will also be available afterwards.

 Go to http://www.lawline.com/cle/course/gender-identity-based-employment-claims-update for details.

 Here is the blurb from Lawline:

 Join attorney, professor, and consultant Jillian Weiss as she examines the legal framework for gender identity-based employment claims.

 Gender identity-based employment claims comprise a relatively new area of the law of employment discrimination. Starting in the late 1990’s, courts and legislatures have increasingly recognized that discrimination based on transgender identity is inappropriate. Court opinions interpreting sex discrimination and disability statutes have found sources of protection. Legislatures have included “gender identity or expression” and similar formulations as protected classes. The United States Equal Employment Opportunity Commission has ruled that such discrimination is sex discrimination.    
In this program, Ms. Weiss will also describe some ethical considerations for those representing transgender clients or defending against their employment discrimination claims.

 Learning Objectives:

I. Understand transgender identity
II. Interpret laws protecting gender identity
III. Address ethical considerations for transgender issues

Sunday, September 28, 2014

Lakeland woman part of historic transgender civil rights lawsuit

Lakeland woman part of historic transgender civil rights lawsuit


My client, Brandi Branson, is part of an historic lawsuit filed by the United States Equal Employment Opportunity Commission. The EEOC has for the first time filed a lawsuit in federal court alleging discrimination based on transgender identity. (Note: I have notified the station of the proper usage of "transgender," rather than "transgendered." I also notified the reporter of the impropriety of using a transgender person's birth name, but the EEOC did put it in the complaint, so it is now public information.)

 Here is the coverage from Tampa Bay's Fox 13.

  FOX 13 News

 LAKELAND (FOX 13) - A Lakeland woman is filing an historic lawsuit, saying she was wrongly fired after her employer found out she was transitioning from male to female.

 It's the first time the federal government is suing on behalf of a transgender person who says their civil rights were violated in the workplace.

 Brandi Branson is one of the plaintiffs. She used to fit people for hearing aids, and she loved it. "It was really a heartfelt thing, to be able to assist people to have a higher quality of life," Branson said of her job. In July of 2010, her name was "Michael." Michael was hired by Dr. Kevin Dorsett's Lakeland Eye Clinic to be his first director of hearing services. The next February, she took the name “Brandi” and started showing up for work in women's clothing and makeup. "I would get the snickers and rolled eyes," she said. She says her boss confronted her and patient referrals stopped coming. 
Within two months, she says she was told her position was being eliminated.

 "The emotional impact was deep, because I was a veteran at doing what I did, worked at this for over 30 years, and suddenly I was found to be useless,"

Branson said. Weeks later, she says they hired someone new for the same job. Attorney Jillian Weiss agreed to go after Lakeland Eye Clinic.

 "Transgendered people have been hidden from public consciousness because of prejudice,"

Weiss said. Weiss says the federal government's Equal Employment Opportunity Commission agreed to make Brandi's one of two cases filed this month on behalf of transgendered people who were fired.
“They have been seen as strangers to the law, often being without the legal protection the rest of us take for granted,"

Weiss said. The 1964 Civil Rights Act bars gender discrimination. Weiss says that includes transgendered people. Branson says she is being so public about something so personal, to stop this from happening to someone else.

 "I have had to deal with things I never dreamed of,"

said Branson.

"Whether or not somebody determines I am a hero or not is up to them. I am doing what I think is the right thing to do."

 She is suing for unspecified damages, but hopes it includes any back and future pay. Lakeland Eye Clinic declined an opportunity to comment.

 Original URL

Friday, September 19, 2014

Judge Backs EEOC’s Right to Investigate Companywide Policy

Here is an interesting press release from the EEOC.  Often, employers resist the idea that they should have to show what their policy has been company-wide. They want to restrict the documentation to the specific incident involved. If they can get away with it, it can make the employee's case harder to prove. 

In this case, the federal court backed up the EEOC in asking for three years of documentation regarding their implementation of the policy. 

Based on Applicant's Allegation That Company Required Unlawful Pre-Offer Health Questionnaire
TAMPA, Fla. - A federal court has ordered KB Staffing, Inc., a staffing firm servicing central Florida, to comply with an administrative subpoena issued by the U.S. Equal Employ­ment Opportunity Commission (EEOC), the agency announced today.  The subpoena, issued in December 2013, seeks informa­tion pertaining to a charge filed with the agency alleging that KB Staffing discriminated against current and prospective applicants for employment and/or employees because of improper health questionnaires.

The EEOC's litigation is based on the company's refusal to comply with a subpoena issued during the course of an investigation. The charge alleged that a job applicant was not hired for a position with KB Staffing because she refused to complete a pre-offer health questionnaire.  Based on that, the EEOC charged the company with violating the Americans With Disabilities Act (ADA).  KB Staffing argued that the EEOC's subpoena exceeded the scope of the charge and that the request for three years' worth of documents was too broad.

The court rejected KB Staffing's arguments, finding that the subpoena issued by the EEOC was within the agency's authority and was relevant to the charge.  U.S. Magistrate Judge Anthony E. Porcelli wrote the recommendation, which was adopted in its entirety by U.S. District Court Judge James S. Moody, Jr. on September 16, 2014.

"EEOC maintains the authority to investigate whether KB Staffing engaged in systemic discrimination when it used a pre-offer health questionnaire during its application process, despite the victim-specific relief it could pursue on the Charging Party's behalf and despite KB Staffing's assertion that it ceased use of the health questionnaire as of December 2012," the judge wrote (EEOC v. KB Staffing, LLC, No. 8:14-mc-41 (M.D.Fla. Aug. 28, 2014) (Report and Recommendation, A. Porcelli, M.J.).

The EEOC subpoena enforcement action was litigated by Supervisory Trial Attorney Kimberly A. Cruz and Trial Attorney Aarrin Golson, and the administrative investigation is being managed by Tampa Field Director Georgia Marchbanks.

"Systemic investigations are important to all charges handled by the EEOC, and the use of subpoenas is vital to carrying out those investigations" said Marchbanks. "We are pleased that the Magistrate and Judge gave us the go ahead to enforce our subpoena and continue our investigation."
Eliminating policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforce­ment efforts, is one of six national priorities identified by the Commission's Strategic Enforcement Plan (SEP).

The EEOC is responsible for enforcing federal laws against employment discrimination. The Miami District Office's jurisdiction includes Florida, Puerto Rico and U.S. Virgin Islands. Further information is available at www.eeoc.gov.

Thursday, September 11, 2014

EEOC Challenges Overbroad Medical Releases In Lawsuit Against Cummins Power

An interesting release from the EEOC. Non job-related medical inquiries are prohibited under the Americans With Disabilities Act, as well as many state laws. Although gender identity disorders are excluded from the ADA as a disability (unless there is a physical cause), the prohibition on non-job related medical inquiries apply to everyone, regardless of disability. Thus, requests for medical and surgical status might very well be prohibited by the ADA and similar state laws.

EEOC Challenges Overbroad Medical Releases In Lawsuit Against Cummins Power Company Violated Two Federal Laws by Making Invasive and Irrelevant Inquiries Through Its Medical Releases, Federal Agency Charges 


MINNEAPOLIS - Shoreview, Minn.-based Cummins Power Generation violated federal law by requiring an employee to submit overbroad medical release forms to have a fitness for duty examination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. In its lawsuit, the federal agency contended that Cummins required an employee to sign various medical release forms that sought irrelevant information.

Cummins informed the employee that he had to sign a release before taking a fitness-for-duty examination. When the employee objected to executing the releases presented to him, Cummins informed him that he had to sign a release or face termination. Cummins ultimately fired the employee for failing to sign the release, the EEOC said. The EEOC maintains that by requiring the employee to execute an overly broad release, Cummins was making disability-related inquiries that were not job-related or consistent with business necessity. Such alleged conduct violates the Americans with Disabilities Act (ADA).

 Further, the EEOC asserts that the releases presented to the employee would have resulted in the disclosure of family medical history in violation of the Genetic Information Nondiscrimination Act (GINA). The EEOC argues that Cummins also violated the anti-retaliation provisions of the ADA and GINA by firing the employee for his good-faith objections to the releases. The EEOC brought the suit under Title I of the ADA, which prohibits disability discrimination in employment, and under Title II of GINA, which prohibits the acquisition of genetic information, after first attempting to reach a pre-litigation settlement through its conciliation process. The case (EEOC v. Cummins Power Generation, Civil Action 0:14-cv-03408-SRN-SER) was filed in U.S. District Court for the District of Minnesota, and is assigned to U.S. District Judge Susan Richard Nelson.

"The EEOC doesn't challenge Cummins' request for a fitness-for-duty examination, but Cummins had an obligation to request only those medical records and information that actually pertained to that issue," said John Hendrickson, regional attorney for the EEOC's Chicago district. "Employees don't give up all rights to privacy of their medical information when they get a job. By asking for all and sundry medical information, Cummins went too far. The EEOC is here to make sure employers follow the requirements of ADA - and of GINA, which is a newer statute that everyone needs to understand and observe."

The EEOC's Chicago District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at http://www.eeoc.gov.