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Sunday, December 14, 2014

When you have a case, and when you just don't

From Wait A Second!, the Second Circuit civil rights blog, discussing a recent case from the U.S. Second Circuit Court of Appeals, about an employee who says that he was fired because of his disability: Although he admitted his inaccurate time records, he said that he was treated more harshly than other employees. The employee lost:

But plaintiff "has not identified any other similarly situated employees -- that is, employees who admitted submitting erroneous timesheets -- much less shown that they were treated more leniently than he was."
http://secondcircuitcivilrights.blogspot.com/2014/12/no-pretext-no-case.html

So what do you need to prove a case?

Wednesday, December 3, 2014

EEOC v. Harris Funeral Homes: Elegy in a Michigan Churchyard

The EEOC recently brought, for the first time in its history, two federal court complaints against employers who discriminated based on transgender identity. (The EEOC has heard many such complaints on the administrative level, but this is the first time they brought suit in federal court on this issue.) One of those cases was my case in Florida, but there was another one brought in Michigan by the EEOC against RG & GR Harris Funeral Homes, on behalf of Amiee Stephens, who was fired when she transitioned.

One of the procedural maneuvers used by employers in such cases is to bring a "motion to dismiss," meaning that even if everything in the employee's complaint is believed, it does not fall within a valid legal cause of action. Harris Funeral Homes has asserted such a motion, and it is very interesting.

The Court Gets It Wrong In Eure v. The Sage Corp., WD Tex,

This is a problematic trans employment discrimination case from the Western District of Texas.  The Court said the following:

"All of the testimony that Eure has presented related to Campanian's animus couches Campanian's alleged discrimination in terms specifically related to Eure's status as a transgender person, not in terms related to her conformance with gender stereotypes."

This is an interesting proposition. If derogatory references to a transgender person are not gender stereotyping, what magic words need to be said to constitute it?

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?

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.

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.

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: