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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Wednesday, January 21, 2015

North Carolina federal court rules trans employee covered by Title VII

The United States District Court for the Eastern District of North Carolina has ruled that a trans employee is covered by Title VII of the Civil Rights Act of 1964.  In Lewis v. High Point Regional Health System, the Court rejected the employer's argument that the lawsuit was barred by previous cases holding there is no cause of action under Title VII for discrimination based on sexual orientation. The Court recognized that sexual orientation is different from gender identity. 

The Court recognized that the EEOC’s amicus brief raised a question of whether plaintiff’s complaint fit within a gender-stereotyping framework. Because this issue was not raised in the defendant’s motion to dismiss, the Court declined to address it.  The Court did not cite to any of the usual cases involving trans discrimination, such as Smith v. Salem or Glenn v. Brumby. 

Ultimately, the Court dismissed the claim because the employee did not provide admissible information showing intentional discrimination.


Saturday, December 20, 2014

Title VII allows 300k:1 ratio of punitive damages, says 9th Circuit

Normally, courts are not allowed to, and often reduce, large punitive damage awards that are much larger than the amount of compensatory damages.  Punitive damages refer to extra damages given because of a defendant's malicious intent, and it is dependent on the financial wealth of the defendant. In addition, in Title VII employment discrimination cases, there are caps on punitive damages, between $50,000 and $300,000, depending on the size of the employer. However, in a recent Title VII case in the Ninth Circuit, Arizona v. ASARCO, the Court specifically permitted $300,000 in punitive damages, despite the compensatory damages being only $1.

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.